ILLUSTRATIVE  CASES 


IN 


PERSONALTY 


BY 

PHILIP  T.  VAN  ZILE 

Dean  Detroit  College  of  Law,  Detroit,  Mich. 


ST.  PAUL 

WEST  PUBLIStlING  CO. 

1896 


Copyright.  1896. 

BY 

WEST  PUBLISHING  COMPANY. 


PREFACE. 


These  cases  have  been  selected,  not  as  leading  cases,  but  as  illustrative  cases,  to 
be  used  in  connection  with  my  lectures  before  the  law  classes  in  the  Detroit  College 
of  Law.  It  is  not  jDretended  that  the  subject  of  Personal  Property  has  been  covered 
by  these  cases,  but  simply  that  some  of  the  principal  subdivisions  have  been  illus- 
trated. 

PHILIP  T.  VAN  ZILE, 

Dean  Detroit  College  of  Law. 
Detroit,  Mich.,  July  24,  1896. 

VAN  ZILE, SEL. CAS. PERS.  (iii)* 


TABLE  OF   CONTENTS. 


PERSONAL  PROPERTY. 

Personal  property  is  divided  into 

1.  Chattels  real. 

2.  Chattels  personal. 

I.  Chattels  Keal. 

Chattels  real  consist  of 

1.  Leaseholds. 

2.  Heirlooms. 

3.  Emblements. 

4.  Fixtures. 

1.    LEASEHOLDS. 

Chattel  interests  in  lands  are  to  be  sold  on 
execution. as  personal  estate. 

A  sale  on  execution  of  an  estate  for  years  in 
InaiJs,  made  in  accordance  with  the  statutory 
provisions  for  the  sale  of  real  estate,  is  void. 

Buhl  V.  Kenyon 3 

2.    HEIRLOOMS. 

For  definition,  see 

2  Bl.  Comni.  427-430; 
Black,   Law  Diet.; 
Bouv.   Law   Diet.; 
And.  Law  Diet.,  and  notes. 

Lax7  of  heirlooms  applicable  in  Eng- 
land. 

Spooner  v.  Brewster 4 

TiSLVir  of  heirlooms  of  little,  if  any,  im- 
portance in  the  United  States.     See 

Schouler,  Pers.  Prop.  99; 

1  Washb.   Real  Prop,    li; 

2  Wait,  Act.  &  Def.  224. 

3.    EMBLEMENTS. 
Emblements    are    fructus    industriales, 
not  fructus  naturales. 

Tenant  for  life  leased  the  premises,  and  died 
during  the  year.  Held,  that  uncut  grass  be- 
longs to  the  owner  of  the  reversion,  and  not  to 
the  lessee  as  emblements. 

Emblements  are  corn  and  other  growth  which 
are  produced  annually;  not  spontaneously,  but 
by  labor  and  industry.  Such  productions  are 
fructus  industriales. 

Growing  grasses,  even  if  produced  from  seed, 
and  ready  to  be  cut  for  hay,  are  not  emblements, 
because  the  improvement  is  not  distinguisha- 
ble from  the  natural  product,  although  it  be 
increased  by  cultivation. 

Reiff  V.  Reiff 5 


The  right  to  emblements,  as  against  the 
landlord,  belongs  only  to  the  tenant 
ivhose  tenancy  is  of  uncertain  duration. 

A  tenant  for  years  of  mortgaged  land  plant- 
ed a  crop  after  the  rendition  of  a  decree  fore- 
closing the  mortgage,  the  tenant  having  been 
a  defendant  in  the  foreclosure  suit.  The  land 
was  sold  under  the  decree,  and  the  sale  con- 


firmed while  the  crop  was  growing,  and  before 
it  matured.  The  purchaser  did  not  obtain  pos- 
session of  the  land,  but  permitted  the  tenant  to 
retain  possession,  merely  notifying  him  that 
he  (the  purchaser)  would  expect  from  the  ten- 
ant rent  in  money  or  in  kind.  Held  that,  as  be- 
tween the  tenant  and  the  purchaser,  the  former 
was  entitled  to  the  crop. 

Monday  v.   O'Neil 6 

It  was  held  in  Richards  v.  Knight  that,  where 
plaintiff  obtained  deed  under  foreclosure  sale 
on  August  23d.  the  tenant  was  entitled  to  crop 
planted  in  the  spring,  which  was  fully  ripe, 
but  not  secured. 

Richards    v.    Knight 8 


If  tenancy  be  terminated  through  fault 
of  tenant,  he  loses  his  right  to  emble- 
ments. 

By  rescinding  a  contract  for  farming  the 
land  of  another,  and  his  abandoning  the  prem- 
ises, a  tenant  yields  up  his  right  to  the  growing 
crops. 

Kiplinger  v.  Green 10 

Tenant  may  sell  while  in  possession  un- 
der lease,  xirith  right  to  sow  and  reap;  and 
subsequent  default  ivill  not  defeat  title 
of  vendee. 

Carney  v.  Mosher 12 

4.    FIXTURES. 
There  is  no  universal  test  by  which  it 
may  be  determined  \phat  are  fixtures.     It 
may  be  asked  by  way  of  determining — 

a.  Is  the  annexation  permanent? 

b.  'What  w^as  the  intention  of  the  par- 

ties? 

c.  Is    there   unity    of   title,    so    that    a 

conveyance  of  the  realty  w^ould  of 
necessity  convey  the  fixture  also? 

Permanency  of  Annexation. 

Michigan    Mut.    Life    Ins.    Co.    v. 

Cronk        13 

Smith  V.  Blake 14 

The  Intention  of  the  Parties. 

Aldine  Manuf'g  Co.  v.  Barnard     .     15 
Manwaring    v.    Jenison     ....     19 

Same — Intention  Implied. 

Merchants'  Nat.  Bank  of  Crookston 

V.    Stanton 25 

Bartlett  v.  Haviland 28 

Unity  of  Title. 

Lansing  Iron  &  Engine  Works  v. 
Walker 29 


VANZILE.SEL.CAS.PEKS. 


(V) 


vi 


TABLE  OF  CONTENTS. 


In  the  absence  of  special  agreement,  re- 
movable fixtures  must  be  removed  during 
the  teru.  of  tenancy.' 

Fitzgerald  v.  Anderson     ....     31 

Free    v.    Stuart '^^ 

Adams    v.    Lee 3o 

II.  Chattels  Personal. 

Chattels  personal  consist  of 

1.  Animate  personalty. 

2.  Inanimate  personalty. 

1.    ANIMATE    PERSONALTY. 
Animate  personalty  includes 

a.  Animals    ferae    naturae. 

b.  Animals  reclaimed. 

c.  Animals  domestic. 

Wild  and  Reclaimed  Animals. 

Bees  are  wild  animals.  Until  liivod  and  re- 
claimed, no  property  can  be  acquired  in  them. 
Finding  and  markiuR  a  tree  whore  they  are  on 
another's  land   vests  no  property  m  the  finder. 

Gillet  V.  Mason 36 

Finder  mav  maintain  an  action  against  one 
interfering  with  him   while  cutting  the  tree. 

Adams   v.   Burton 37 

Wild  animals  captured  are  property  of  cap- 
tor. 

See  State  v.  House,  65  N.  C.  315. 

Dogs  have  a  value,  and  are  property. 
Tenhopen  v.  Walker 39 

Dcmiestic  Animals. 

Owner  of  dam  is  entitled  to  the  increase  of 
tame  or  domestic  animals. 

Kellogg  V.  Lovely 41 

2.    INANIMATE    PERSONALTY. 

Inanimate  chattels  personal  are  either 

a.  Corporeal 

b.  Incorporeal. 


Joint  Owners  of  Personalty. 

Wait   V.    Bovee 4.3 

McLeod  V.  Free 44 

Partnership  Assets. 

Real  estate  purchased  xrith  partnership 
funds  goes  to  surviving  partner  as  per- 
sonalty, and  may  be  conveyed  or  ivill  pass 
by  assignment  for  payment  of  partner- 
ship debts. 

Barton  v.  Lovejoy 40 

Hanson  v.  Metcalf 48 

Liight  and  Air. 

Right  to  light  and  air  cannot  be  ac- 
quired by  use  of  adjoining  land. 

Western  Granite  &  Marble  Co.  v. 
Knickerbocker        50 


Keating  v.    Springer 52 

Dill  V.  Board  of  Education  of  City 
of  Camden ^^ 

Water. 

1.    What  are  navigable  waters. 

Falls  Manuf'g  Co.  v.  Oconto  River 
Imp.  Co 


63 


2.  One  using  navigable  stream  must  use 
it  with  due  deference  to  the  rights  of 
others. 

Page  V.  Mille  Lacs  Lumber  Co.     .     68 

3.  Rights  of  riparian  owners  on  nav- 
igable stream  are  subordinate  to  public 
use. 

Minneapolis  Mill   Co.  v.   Board  of 
Water  Com'rs  of  City  of  St.  Paul     70 

4.  Riparian  owTiers  have  a  right  to  the 
reasonable  use  of  the  w^ater  as  it  passes 
their  lands. 

Gillis   V.   Chase 72 

Dumont    v.    Kellogg     ...*..     73 

5.  A  canal  constructed  and  maintained 
at  private  expense  is  like  a  private  way. 

Potter  V.  Indiana  &  L.  M.  Ry.  Co.     76 
Lost  Property. 

1.  To  constitute  lost  property,  the  own- 
er must  have  involuntarily  and  acciden- 
tally lost  or  parted  w^ith  the  possession 
of  the  property,  and  not  have  laid  it 
away,  intending  to  retake  it,  and  have 
forgotten  w^here  he  left  it. 

McAvoy  V.  Medina 78 

2.  The  finder  has  a  good  title  as  against 
everybody  but  the  oxp^ner. 

Hamaker  v.   Blanchard     ....     79 

3.  The  finder  has  no  legal  claim  to  rec- 
ompense for  finding  against  the  oumer. 

Watts  v.  Ward 80 

4.  There  is  an  implied  promise  on  the 
part  of  the  owner  to  pay  to  the  finder 
necessary  expenses  in  obtaining  and  car- 
ing for  the  property. 

Chase  v.  Corcoran 81 

5.  The  finder  of  lost  property  has  no 
lien  upon  it  as  finder  after  he  know^s  to 
^vhom  it  belongs,  but  he  has  a  lien  upon 
it  for  whatever  reward  may  be  offered  for 
its  recovery 

Wood    V.    Pierson 82 

6.  .WTien  the  finder  takes  possession  of 
the  lost  goods  with  intent  to  appropriate 
them  to  his  ow^n  use,  believing  at  the 
time,  or  having  good  grounds  to  believe, 
that  the  ow^ner  can  be  found,  it  is  larceny. 

Baker   v.    State 84 


TABLE  OF  CONTENTS. 


Confusion  of  Goods. 

Confusion  of  goods  takes  place  when 
there  is  such  a  mixture  of  the  goods  of 
two  or  more  parties  that  they  cannot  be 
distinguished.     This  may  be 

1.  By  consent  of  parties. 

2.  By  mistake. 

3.  By  inevitable  accident. 

4.  By  the  wrongful  act  of  one  or  more 

of  the  parties. 

Pickering    v.    Moore 85 

Gates  V.  Rifle  Boom  Co 87 

First  Nat.  Bank  of  Denver  v.  Scott     90 

Patents. 

Wood  V.  Packer .92 

Phillips   V.   Risser 94 


Copyrights. 
Bartlette  v.  Crittenden     . 

Trade-Marks. 


Celluloid  Manufg  Co. 
ManufgCo.   .     .     . 


V.  Cellonite 


97 


99 


Gifts. 

Gifts  are  of  tw^o  kinds: 

1.  Gifts  inter  vivos. 

2.  Gifts  causa  mortis. 

1.    GIFTS  INTER  VIVOS. 

Decedent  deposited  bonds  and  coupons  with 
a  banlc,  and  took  a  writing,  signed  by  the  cash- 
ier, acknowledging  their  receipt,  and  that  they 
were  "to  be  sold,  and   the  proceeds  placed  to 


her  credit."  Held,  that  a  delivery  of  the  re- 
ceipt, with  an  indorsement  thereon,  signed  by 
decedent,  requesting  the  cashier  to  "let"  plain- 
tiff "have  the  amount  of  the  within  bill,"  and 
with  the  intention  to  pass  title  thereto,  consti- 
tuted a  valid  gift  of  the  money  due  from  the 
bank. 

An  action  ex  contractu,  brought  by  an  ad- 
ministrator to  recover  money  claimed  to  have 
been  wrongfully  paid  to  defendant  by  a  cer- 
tain bank,  constitutes  an  election  and  ratifica- 
tion of  the  payment,  and  precludes  a  subse- 
quent action  against  the  bank  on  the  same 
claim. 

Crook  Y.  First  Nat.  Bank  of  Bara- 

boo 104 

Wylie  V.  Charlton 108 

Delivery  is  necessary  to  the  validity  of 
the  gift. 

Bellis  V.  Lyons 113 

Booth  Y.  Bristol  County  Sav.  Bank  115 

A  gift  inter  vivos,  when  complete,  can- 
not be  revoked. 

Yingst  Y.  Lebanon  &  A.  St.  R.  Co.  116 


2.    GIFTS    CAUSA   MORTIS. 

Hatcher  t.  Buford 


110 


Both  delivery  and  apprehension  of 
death  from  present  disease  or  impending 
danger  are  essential  to  the  validity  of  a 
gift  causa  mortis. 

Zeller    y.    Jordan 12:1 

A  gift  causa  mortis,  differing  from  a 
gift  inter  vivos,  may  be  revoked  at  any 
time  before  the  death  of  the  donor,  even 
though  it  has  been  delivered. 

Doran  v.  Doran 12.~) 


CASES   REPORTED. 


Page 

Adams  v.  Burton  (43  Vt.  36) 37 

Adams  v.  Lee  (31  Mich.  440) 35 

Aldine  Manuf  g;  Co.  v.  Barnard  (48  N.  W. 
280,  84  Mich.  G32) 15 

Baker  v.  State  (29  Ohio  St.  184) 84 

Bartlett  v.   Haviland   (52  N.   W.   1008,  92 

Mich.  552) 28 

Bartlette    v.    Crittenden    (Fed.    Cas,    No. 

1,082,   4  McLean,   300) 97 

Barton  v.  Lovejov  (57  N.  W.  935) 4^ 

Bellis  V.   Lyons   (5G  N.  W.   770,  97  Mich. 

Qq§\  113 

Booth  V.  Bristol  County' Sav.  Bank'  (38  N. 

E.  1120,  162  Mass.  455) 115 

Buhl  V.  Kenyon  (11  Mich.  249) 3 

Carney     v.   Mosher     (56    N.    W.   935,   97 
Mich.   554)    12 

Celluloid    Manuf'g   Co.    v.    Cellonite   Man- 
uf'g  Co.  (32  Fed.  94) 99 

Chase  v.  Corcoran  (106  Mass.  286) 81 

Crook  V.  First  Nat.  Bank  of  Baraboo  (52 
N.  W.  1131.  83  Wis.  31) 104 

Dill  V.  Board  of  Education  of  City  of  Cam- 
den (20  Atl.  739.  47  N    .J.  Eq.  421) 56 

Doran  v.  Doran  (33  P.  929,  99  Cal.  311).  .  125 
Dumont  v.  Kellogg  (29  Mich.  420) 73 

Falls   Manuf'g  Co.   v    Oconto  River   Imp. 

Co.  (58  N.  W.  257.  87  Wis.  134) 63 

First  Na.t.  Bank  of  Denver  v.  Scott    (54  N. 

W.  987.  36  Neb.  607) 90 

Fitzgerald  v.  Anderson  (51  N.  W.  554.  81 

Wis.  341)    31 

Free  v.  Stuart  (57  N.  W.  991,  39  Neb.  220)     32 

Gates  V.   Rifle  Boom   Co.   (38  N.  W.  245, 

70  Mich.   .309) 87 

Gillet  V.  Mason  (7  Johns.  16) 36 

Gillis  V.  Chase  (31  Atl.  18) 72 

Hamaker  v.  Blanchard  (90  Pa.  St.  377)..  79 
Hanson    v.    Metcalf    (48    N.    W.    441.    46 

Minn.   25)    48 

Hatcher  v.  Buford  (29  S.  W.  641,  60  Ark. 

169)    119 

Keating  v.  Springer  (34  N.  E.  805.  146  111. 

481)  52 

Kellogg  V.  Lovely  (8  N.  W.  099.  46  Mich. 

131)     41 

Kiplinger  v.  Green  (28  N.  W.  121,  61  Mich. 

340)    10 


Page 
Lansing  Iron  &  Engine  Works  v.  Walker 
(51  N.  W.  1061.  91  Mich.  409) 29 

McAvoy  V.  Medina  (11  Allen,  548) 78 

McLeod  V,  Free  (55  N.  W.  685,  96  Mich. 

50    44 

Manwaring  v.  Jenison  (27  N.  W.  899,  61 

Mich.  117)    19 

Merchants'    Nat.    Bank     of  '  'c'ro'ok's'ton'  'v. 

Stanton  (.56  N  W.  821,  55  Minn.  211)..  25 
Michigan  Mut.  Life  Ins    Co    v.  Cronk  (52 

N.  W.  1035.  93  Mich    49) 13 

Minneapolis   Mill   Co.    v.   Board   of  Water 

Com'rs  of  City  of  St.  Paul  (58  N.  W.  33)  70 
Monday  v.  O'Neil  (03  N.  W.  32.  44  Neb 

'24)     •       G 

Page  V.  Mille  Lacs  Lumber  Co.  (55  N.  W, 

608,   53  Minn.   492) 68 

Phillips  V.  Risser  (26  Fed.  308) '.  94 

Pickering  v.  Moore  (32  Atl.  828) 85 

Potter  V.  Indiana  &  L.  M.  R.  Co.  (54  N. 

W.  956,  95  Mich.  389) 76 

Reiff  V.  Reiff  (64  Pa.  St.  134) 5 

Richards    v.    Knight    (42    N.    W.    584.    78 
Iowa,   69) 8 

St.    Anthony    Falls    Water-Power    Co.    v. 

Board  of  Water   Com'rs  of   City  of  St. 

Paul   (58  N.   W.  33) 70 

Smith   V.   Blake  (55  N.  W.  978,  96  Mich. 

542)     14 

Spooner  v.  Brewster  (3  Bing.  136) 4 

Tenhopen   v.   Walker   (55   N.   W.   657,   96 
Mich.   236) 39 

Wait  V.   Bovee   (35   Mich.  425) 43 

Watts  V.  Ward  (1  Or.  8(?) 80 

Western  Granite  &  Marble  Co.  v.  Knick- 
erbocker (37  Pac.  192,  103  Cal.  Ill) 50 

Wood  V.  Packer  (17  Fed.  650) 92 

Wood  V.  Pierson   (7  N.  W.  888,  45  Mich. 

313)     82 

Wylie  V.   Charlton,   two  cases   (62   N.   W. 

220,   43   Neb.   840) 108 

Yingst   V.   Lebanon   &   A.    St.   R.   Co.   (31 
Atl.  687.  167  Pa.  St.  438) 116 


Z(<ller 
143) 


V.    Jordan    (38    Pac.    640,    105   Cal. 


123 


VAN  ZILE,SEL.CAS.PERS. 


'(ix)t 


ILLUSTRATIVE  CASES 


IN 


PERSONALTY. 


VAN  ZIM!,SBt,.fA9.PEBS.  (l)* 


CHATTELS  KEAL. 


BUHL   V.  KEN  YON. 

(11  Mich.  ■24[).) 

Supreme  Court  of  Michigan.     May  12,  1863. 

Error  to  circuit  court,  Wayne  county. 
The  opinion  states  the  case. 

Walker  &  Kent,  for  plaintiffs  in  error.  Wells 
&  Hunt  and  E.  Hall,  for  defendant  in  error. 

CAMPBELL,  J.  The  plaintiffs  in  error 
brought  ejectment  in  the  court  below  as  exe- 
cution purchasers  of  the  interest  of  one  of  two 
tenants  for  years  of  certain  premises  in  De- 
troit, wbich  were  sold  as  real  estate. 

The  fiii'st  question  presented  is  whether  such 
an  interest  in  real  estate  is  within  the  meaning 
of  the  statutes  relating  to  the  levy  and  sale 
of  lands  on  execution.  The  statute  provides 
that,  where  not  inconsistent  with  the  manifest 
intent  of  the  legislature,  "the  word  'land'  or 
'lands'  and  the  words  'real  estate'  shall  be 
construed  to  include  lauds,  tenements  and  real 
estate,  and  all  rights  thereto,  and  interests 
therein."     1  Comp.  Laws,  §  2. 

By  section  3119  of  the  Compiled  Laws,  pro- 
vision is  made  for  selling  "all  the  real  estate 
of  a  debtor,  whether  in  possession,  reversion, 
or  remainder,  including  lands  fraudulently 
conveyed  with  intent  to  defeat,  delay  or  de- 
fraud his  creditors,  and  the  equities  and  rights 
of  redemption  hereinafter  mentioned."  By 
section  4463,  in  the  general  chapter  on  "Judg- 
ments and  Executions,"  it  is  declared  that  "all 
chattels,  real  or  personal,  and  all  other  goods 
liable  to  execution  by  the  common  law,  may 
be  taken  and  sold  thereon,"  except  as  is  other- 
wise provided  by  law. 

As  a  leasehold  interest  of  this  kind  is  a  chat- 
tel interest,  and  as  it  is  in  this  last  section 
classed  among  personal  property,  if  it  should 
be  held  included  in  the  class  of  real  estate 
also,  some  confusion  must  necessarily  arise. 
But  as  we  have  heretofore  held  in  Trask  v. 
Gi-een,  9  Mich.  358,  and  ^L'^ynard  v.  Hoskins, 
9  Mich.  485,  the  statute  definition  of  real  es- 
tate does  not  apply  in  its  full  breadth  to  exe- 


cution sales,  because  incompatible,  when  thus 
applied,  with  the  general  intent  as  well  as  the 
special  clauses  of  the  statutes  governing  these. 
We  think  the  case  of  a  chattel  interest  is  not 
within  the  law  applicable  to  the  sale  of  lauds 
on  execution.  Such  interests  have  always 
been  sold  as  personalty  on  common-law  exe- 
cutions, and  it  would  require  plain  language 
to  deduce  an  intent  to  make  them  disposable 
otherwise.  But,  apart  from  the  fact  that  they 
were  so  liable  when  lands  were  not,  the  stat- 
utory provisions  governing  real-estate  sales  are 
not  compatible  with  the  idea  that  these  can  be 
included  within  them.  There  are  multitudes 
of  leases  for  short  periods  where  a  sale  would 
be  entirely  nullified  by  a  15-months  period  for 
redemption.  The  whole  machinery  for  land 
sales  is  devised  with  a  view  to  reach  freehold 
estates.  The  lands  are  sold  in  parcels,  the 
papers  are  filed  in  the  office  of  the  register  of 
deeds,  successive  sales  may  be  had  of  the 
rights  to  redeem,  and  various  other  incidents- 
all  inconsistent  with  any  such  interest  as  is 
here  in  question— show  that  the  property  sold 
as  real  estate  is  an  estate  of  a  more  permanent 
character,  and  involving  a  different  kind  of 
ownership. 

It  is  claimed,  however,  that  a  sale  which 
will  pass  realty  must  be  good  to  pass  person- 
alty. So  far  as  the  documentary  evidences  of 
sale  are  concerned,  this  is  true.  But  a  sale  on 
execution  is  designed  to  produce  the  best  price 
tvhich  can  be  obtained;  and  a  sale  on  condi- 
tion that  no  title  shall  vest  for  15  months 
would,  under  ordinary  circumstances,  render 
a  lease  nearly  valueless,  besides  involving  the 
danger  of  forfeiture.  No  bidder  would  give 
for  the  shortened  term  the  value  of  the  full 
term. 

We,  therefore,  are  of  opinion  that  no  title 
passed  to  the  plaintiff's  by  their  execution  sale. 
As  this  disposes  of  the  whole  controvers}^  we 
make  no  reference  to  the  other  points  involved. 

The  .iudgment  below  is  affirmed,  with  costs. 

The  other  justices  concurred. 

See  Grover  v    Fox,  36  Mich.  453-459. 


CHATTELS  REAL. 


SPOOXER   V.   BREWSTER. 

(3  Ring.  136.) 

Trinity  Term.    1825. 

Trespass  for  seizing,  cutting,  damaging,  and 
destroying,  divers  tombstones  and  grave- 
stones of  the  plaintifif,  and  with  chisels  and 
other  instruments  cutting  out  and  erasing 
therefrom  divers  inscriptions,  letters,  and  fig- 
ures of  the  plaintifif.  and  taking  and  carrying 
away  the  same  stones,  and  converting  them 
to  defendant's  own  use. 

riea.  general  issue. 

At  the  trial  before  Best,  C.  J..  Middlesex 
sittings  after  last  Easter  term,  it  appeared 
that  one  Gravenor  had  in  1815  married  the 
daughter  of  the  plaintiff,  who  having  been 
convicted  of  piu-chasiug  government  stores, 
was  then  undergoing  sentence  of  transporta- 
tion in  New  South  Wales.  Mrs.  Gravenor 
died  in  ISIG,  when  the  plaintiff  being  still 
abroad  and  under  sentence,  his  wife  erected 
and  paid  for  a  tombstone  to  her  daughter  in 
Bethnal  Green  church-yard,  and  some  little 
time  after  caused  to  be  inscribed  upon  the 
stone  the  words  "The  Family  Grave  of  .John 
and  Sarah  Spooner."  In  January  1S2.5  the 
defendant  (by  direction  of  Gravenor  who  had 
paid  for  the  grave)  took  up  the  tombstone, 
and  immediately  convej'ed  it  to  his  workshop. 
While  he  was  in  the  act  of  removing  the  stone 
he  received  a  prohibition  from  the  plaintiff, 
whose  consent  had  been  asked  and  refubed: 
and  after  the  stone  had  been  removed  from 
the  church-yard,  notice  was  given  him  by  the 
plaintiff  not  to  alter  it;  this  notice  he  prom- 
ised to  observe,  but  subsequently  said  he  was 
indemnified,  and  would  alter  it;  he  then  oblit- 
erated the  words  "The  Family  Grave  of  John 
and  Sarah  Spooner."  and  added  the  record  of 
the  death  of  Gravenor's  two  children. 

It  was  objected  on  the  part  of  the  defend- 
ant that  the  freehold  of  the  church-yard  be- 
ing in  the  parson,  the  plaintiff  could  not  main- 
tain trespass  for  what  the  defendant  had  done. 

A  verdict,  however,  was  found  for  the  plain- 
tiff, with  leave  for  the  defendant  to  move  to 
enter  a  nonsuit  Instead. 


Wilde,  Serjt.,  for  defendant 

BEST,  C.  J.  There  is  no  doubt  that  some 
action  may  be  maintained  for  the  injury  of 
which  the  plaintiff  complains.  Lord  Coke 
says  the  parson  in  such  a  case  "is  subject  to 
an  action  to  the  heir."  Co.  Litt.  ISb.  But 
this  passage  does  not  state  what  form  of  ac- 
tion is  to  be  adopted.  The  observance  of 
forms  is  indeed  material  for  the  purijoses  of 
justice.  Imt  upon  consideration  we  are  all  of 
opinion  that  the  form  which  has  been  chosen 
in  the  present  instance  is  right.  There  are 
many  authorities  which  show  that  the  heir 
may  maintain  an  action  in  cases  of  this  kind: 
so  also  the  owner  of  a  pew  for  violations  of 
the  right  to  enjoy  it  In  general  that  right 
is  conferred  by  the  ordinary,  and  case  is  the 
remedy  for  a  mere  obstruction;  but  in  Daw- 
trie  V.  Dee.  2  Rolle.  140.  it  is  said,  if  the  pew 
itself  which  the  party  has  put  up.  be  broken, 
trespass  lies.  That  case  has.  I  understand, 
been  somewhere  doubted,  but  I  think  it  con- 
sistent with  law  and  good  sense,  and  it  agrees 
with  the  decisions  in  9  Ed.  IV.  p.  14,  pi.  S. 
In  Moore.  878,  I>ady  Grey's  Case  is  cited, 
and  trespass  said  to  be  the  proper  form. 

In  a  case  like  the  present,  where  it  is  clear 
some  action  is  maintainable,  one  instance  is 
sufficient  to  decide  the  form.  As  to  the  cases 
of  felouy  the  distinctions  in  favorem  vitae  are 
exceedingly  nice,  but  even  in  those  cases  a 
slight  interval  between  severance  and  re- 
moval, will  make  the  thing  removed  a  chat- 
tel. The  defendant  here  subsequently  to  the 
removal  of  the  stone,  was  cautioned  not  to 
obliterate  the  inscription,  and  he  promised 
to  abstain  from  doing  so;  but  afterwards,  say- 
ing he  was  indemnified,  effected  the  erasure 
complained  of.  It  has  been  urged  that  the 
freehold  of  the  churchyard  is  in  the  parson; 
that  is  undoubtedly  true,  but  even  he  has  no 
right  to  remove  the  tombstones,  the  property 
of  which  remains  in  the  persons  who  erected 
them. 

The  rest  of  the  court  concurring,  the  rule 
was  refused. 


EMBLEMENTS. 


REIFF  V.  REIFF. 

(64  Pa.  St.  134.) 

Supreme  Court  of  Pennsylvania.    Jan.  19, 
1870. 

Error  to  court  of  common  pleas,  Montgom- 
ery county. 
The  facts  sufficiently  appear  in  the  opinion. 

D.  H.  Mulvany  and  R.  C.  McMurtrie,  for 
plaintiff  in  error.  G.  R.  Fox,  for  defendant 
in  eiTor, 

READ,  J.  The  plaintiffs  in  error  were  the 
lessees  of  a  farm  of  152  acres  from  their  moth- 
er, a  widow,  who  had  a  life  estate  in  it  under 
the  will  of  her  husband,  their  father.  They 
were  annual  lessees  from  the  1st  of  April, 
18G6,  18G7,  1868,  the  widow  dying  on  the 
l.:)th  June,  1868.  At  the  time  of  her  death 
there  was  standing  uncut  on  the  premises  a 
quantity  of  mixed  timothy  and  clover  grass, 
a  quantity  of  grass  part  meadow  and  part 
timothy,  and  a  quantity  of  timothy  exclusively. 
The  question  was,  was  this  grass  emblements. 


belonging  to  the  tenants  of  the  deceased  owner 
of  the  life  estate?  The  vegetable  chattels  call- 
ed emblements  are  the  corn  and  other  growth 
of  the  earth  which  are  produced  annually, 
not  spontaneously,  but  by  labor  and  industi-y, 
and  thence  are  called  fructus  iudustriales. 
The  growing  crop  of  glass,  even  if  grown 
from  seed,  and  though  ready  to  be  cut  for  hay, 
cannot  be  taken  as  emblements;  because,  as 
it  is  said,  the  improvement  is  not  distinguish- 
able from  what  is  natural  product,  although 
it  may  be  increased  by  cultivation.  1  Wil- 
liams, Ex'rs,  670,  672. 

The  learned  judge  in  the  court  below  is  a 
practical  farmer,  thoroughly  acquainted  with 
the  established  usages  of  our  state,  and  we 
have  no  hesitation  in  agreeing  with  him  that 
this  crop  of  hay  was  not  emblements,  and  be- 
longed to  the  executors  of  the  testator.  Judg- 
ment affirmed. 

See  Evans  v.  Iglehart,  6  Gill  &  J.  171;  Clark 
V.  Harvey,  ~A  Pa.  St.  142;  Sanders  v.  Elling- 
ton, 77  N.  C.  255;  Lamberton  v.  StoufEer,  55 
Pa.  St.  2S4. 


CHATTELS  REAL 


MONDAY  V.   OXEIL. 
(C3  X.  W.  32.  44  Neb.  724.) 
Supreme  Court  of  Nebraska.    April  5.  1895. 
Error  to  district  court.  Dodge  county;    SuUi- 
Tan.  Judge. 

Action  of  trover  by  Daniel  Monday  against 
William  O'Neil.  Judgment  for  defendant,  and 
plaintiff  brings  error.     Affirmed. 

D.  M.  Strong  and  Frick  &  Dolegal.  for  plain- 
tifif  in  error.  C.  Hollenbeck,  for  defendant  in 
error. 

IRVINE.  C.  This  case  was  tried  in  the 
district  court  on  a  stipulation  of  facts.  The 
court  instructed  the  jury  to  return  a  verdict 
for  the  defendant,  and  from  the  judgment 
rendered  thereon  the  plaintiff  prosecutes  er- 
ror. The  action  was  one  in  the  nature  of 
trover  for  SO  acres  of  corn  grown,  and  a  part 
thereof,  standing  on  the  W.  Vo  of  the  N. 
SV.  14  of  section  13,  township  IS.  range  5,  in 
Dodge  county.  The  essential  facts,  as  dis- 
clo.^ed  by  the  stipulation,  are  as  follows:  On 
the  14th  day  of  January.  1S69.  one  Stanford, 
who  was  then  the  owner  of  the  land  de- 
scribed in  the  petition,  executed  a  mortgage 
tliereon  to  the  J.  T.  Robinson  Notion  Com- 
pany. On  the  3d  of  January.  1891,  an  action 
was  brought  to  foreclose  this  mortgage,  the 
parties  defendant  being  Stanford  and  wife 
and  O'Neil.  the  defendant  in  this  case;  the 
petition  alleging  that  O'Neil  claimed  a  lease- 
hold interest  in  the  premises,  but  that  such 
interest  was  inferior  to  the  interest  of  the 
plaintiff.  All  the  defendants  made  default, 
and  on  April  23.  1891.  a  decree  of  foreclosure 
was  rendered.  On  June  26.  1891,  the  land 
was  sold  under  the  decree  of  foreclosure  to  the 
plaintiff.  On  the  27th  of  June  the  sale  was 
confirmed,  and  a  deed  executed,  which  was 
the  same  day  recorded.  O'Neil  was  the  ten- 
ant of  Stanford  for  one  year  from  March  1. 
1891.  and  the  com  in  question  was  planted  by 
O'Neil  in  May.  1891.  and  was  growing  at  the 
time  of  the  sale  and  confirmation.  No  lea.se 
was  made  by  tJhe  plaintiff  to  O'Neil,  but 
O'Neil  continued  in  possession  after  the  sale, 
and  Monday  made  no  effort  to  obtain  pos- 
session, except  that  at  different  times  during 
the  summer  of  1S91  he  notified  O'Neil  not  to 
pay  rent  to  Stanford,  and  that  he  would  in- 
sist on  either  the  rent  or  a  portion  of  the 
crops.  The  question  presented  is  therefore 
whether  under  the  foregoing  state  of  facts. 
Monday  or  O'Neil  was  the  owner  of  the  crops 
growing  on  the  land,  but  not  matured  at  the 
time  the  sale  was  confirmed. 

Since  the  briefs  were  tiled  the  cases  of  Yea- 
ZPl  V.  White.  40  Neb.  432.  58  N.  W.  1020,  and 
Foss  V.  Marr.  W  Neb.  559,  59  N.  W.  122.  nave 
been  decided.  Their  effect  is  to  limit  the  in- 
quiry here  to  a  much  narrower  field  than  that 
covered  by  the  briefs.  In  Yeazel  v.  White 
it  was  decided  that  the  owner  of  land  sold 
upon  execution  retains  the  right  of  possession, 
and  is  entitled  to  the  usufruct  of  such  land 
until  confirmation  of  the  sale,  and  that,  tliere- 


I  fore,  the  judgment  debtor  is  not  accountable 
"to  The  purchaser  for  hay  cut  upon  the  land 
after  sale  and  before  continuation.  In  Foss 
V.  Marr  it  was  held  that  a  mature  crop  of 
corn  standing  upon  land  sold  at  judicial  sale, 
and  not  taken  into  account  by  the  appraisers, 
did  not  pass  to  the  purchaser,  but  remained 
the  property  of  the  mortgagor,  who  had  plant- 
ed and  cultivated  it.  In  the  latter  case  some 
stress  was  laid  upon  the  fact  that  the  crop 
was  matured,  and  the  language  of  the  su- 
I  preme  court  of  Iowa  in  Hecht  v.  Dettman, 
'  56  Iowa,  679,  7  N.  W.  495.  and  10  N.  W.  241. 
wherein  a  distinction  is  drawn  between  a 
growing  crop  and  one  already  matured,  but 
not  severed,  was  quoted  as  confirming  the 
conclusion  "-eached.  The  language  used  in 
Hecht  V.  Dettman  was,  however,  employed  to 
distinguish  that  case  from  Downard  v.  Groff, 
40  Iowa.  597.  holding  that  the  right  to  grow- 
ing crops  passes  to  the  purchaser  at  a  judicial 
sale.  Downard  v.  Groff  followed  the  general 
current  of  authority,  and  recognized  that  Cas- 
silly  V.  Rhodes.  12  Ohio.  8S,  was  opposed  to 
tiie  conclusion  reached,  .stating  truly  that  Cas- 
silly  V.  Rhodes  was  based  upon  a  construction 
of  the  Ohio  appraisement  law.  Foss  v.  Marr 
was  based  upon  the  doctrine  of  Cassilly  v. 
Rhodes,  our  appraisement  law  being  similar 
to  that  of  Ohio,  and  the  reasons  given  by  the 
Ohio  court  for  departing  from  the  general 
rule,  because  of  the  effect  of  the  appraisement 
law,  being  deemed  sound  and  applicable  to 
this  state.  The  court  did  not.  in  Foss  v. 
Marr.  undertake  to  decide  that  growing  crops 
do  pass  to  the  purchaser.  On  the  contrarj-. 
in  the  last  paragraph  of  the  opinion  it  is  ex- 
pressly stated  that  that  question  was  neither 
presented  nor  decided.  Cassilly  v.  Rhodes 
was  a  case  where  the  crop  involved  was  one 
which  had  not  matured,  and  the  language  of 
the  opinion  refers  to  it  throughout  as  a  grow- 
ing crop.  The  reason  of  the  decision  was 
that  the  value  of  the  annual  crops  is  not  in- 
cluded in  the  appraisement  made  prior  to  the 
sale,  and  that  the  vendor's  rights  therein  can 
be  saved  only  by  regarding  such  crops  as  per- 
sonalty requiring  a  separate  levy.  This  rea- 
soning, which  is  approved  in  Foss  v.  Marr.  is 
equally  applicable  to  a  growing  crop  as  to  one 
matured.  In  Houts  v.  Shawalter.  10  Ohio' 
St  125.  Cassilly  v.  Rhodes  was  reaffirmed,  and 
the  crop  there  in  controversy  was  also  a  grow- 
ing crop. 

Ir  will  be  remembered  that  Monday,  after- 
he  obtained  title  to  the  land,  did  not  enter 
into  possession  thereof,  but  suffered  O'Neil  to 
'   remain   in   possession,    merely   notifying   him 
that   Monday   would  expect  either  rent  or  a 
portion  of  the  crop;    that  is,  he  treated  O'Neil 
as  his  tenant,  demanding  rent  either  in  money 
or  in  kind.     O'Neil's  conduct  is  not  sufficient- 
ly disclosed  to  establish  whether  or  not  there 
was  an  attornment  by  him  to  Monday.     As- 
simiing  that  there  was  not,  It  would  seem  that 
he  was  holding  adversely;    and,   if  so,   it  is 
I   not  apparent  how  Monday  could  obtain  the 
I  crop.     If  he  were  not  holding  adversely,  then 


EMBLEMENTS. 


liis  relationship  to  Monday  would  seem  to  be 
that  of  a  tenant  at  will.  At  the  common  law, 
when  a  tenancy  is  uncertain,  so  that  the  tien- 
ant  cannot  know  that  his  estate  will  termi- 
nate before  the  crop  can  ripen,  the  tenant  is 
entitled  to  re-enter  and  harvest  the  crop  at 
maturity.  This  is  the  law  in  this  state.  Sorn- 
berger  v.  Berggren,  20  Neb.  399,  30  N.  W.  413; 
McKean  v.  Smoyer,  37  Neb.  G94,  56  N.  W. 
492.  Under  this  principle,  it  would  seem  clear 
that  O'Neil  was  entitled  to  the  crop. 

In  opposition  to  this  view,  it  is  argued  that 
the  foreclosure  suit  had  been  begun,  and,  in- 
deed, a  decree  of  foreclosure  rendered,  before 
the  crop  was  planted,  but  we  do  not  think 
this  fact  material.  O'Neil  knew,  of  course, 
that  a  sale  might  be  made  and  confirmed  be- 
fore his  crop  would  mature,  but  he  could  not 
know  that  such  would  be  the  case.  We  do 
not  think  that  he  was  obliged  to  abandon  the 
land,  or  permit  it  to  lie  uncultivated,  merely 
because  there  was  a  possibiliiy  or  a  probabil- 
ity that  his  estate  would  be  determined  be- 
fore the  crop  would  mature.  Public  policy 
requires  that  the  law  should  be  so  construed 
as  to  encourage,  rather  than  discourage,  the 
tillage  of  lands  under  such  circumstances. 
The  language  of  the  supreme  court  of  Ohio 
in  Houts  v.  Shawalter,  supra,  is  peculiarly  ap- 
plicable: "Under  our  system,  frequent  ad- 
vertisements and  offers  of  sale,  and,  occasion- 
ally, revaluations,  are  necessary,  before  a  sale 
can  be  effected.  When  an  appraisement  is 
made,  it  cannot  be  foreseen  when  a  sale  will 
be  effected.  It  is  not  for  the  interest  of  any 
party,  nor  for  the  public  interest,  that  the 
land    should    thenceforth    lie    waste.     Then 


there  may  have  been  no  crop  sown  or  plant- 
ed, but,  when  the  sale  comes  to  be  made, 
there  may  be  growing  crops  put  into  the 
ground  in  the  meantime."  This  language  was 
used  with  reference  to  the  period  between  ap- 
praisement and  sale,  but  it  applies  with  all 
the  more  force  to  the  period  between  decree 
and  sale.  We  are  not  determining  in  this 
case  what  the  rights  of  the  parties  would  be 
had  Monday  secured  possession  and  evicted 
O'Neil  before  the  crop  matiu'ed.  What  we 
hold  is  that,  following  the  reasoning  in  Cas.sil- 
ly  V.  Rhodes  and  Foss  v.  Marr,  the  tenant 
should  be  protected  in  his  crop,  unless  before 
it  is  matured  something  happens  to  deprive 
him  of  the  right  thereto,  and  that,  therefore, 
where  the  purchaser  permits  the  tenant  to 
remain  in  possession  until  the  crop  is  har- 
vested, the  title  thereto  remains  in  the  ten- 
ant, and  does  not  pass  to  the  purchaser.  We 
have  referred  to  O'Neil  as  the  tenant,  but 
what  has  been  said  is  applicable  to  the  mort- 
gagor himself.  We  have  treated  O'Neil  as 
if  he  were  himself  the  mortgagor,  because, 
without  inquiry  as  to  whether  he  would  oth- 
erwise have  any  higher  rights,  having  been 
made  a  defendant  in  the  foreclosure  suit,  a 
decree  having  there  been  rendered  barring 
his  estate,  it  is  clear  that  in  this  proceeding 
he  stands  in  no  better  position  than  had  he 
been  the  mortgagor  instead  of  the  mortga- 
gor's tenant.  Under  the  view  of  the  law 
above  presented,  the  plaintiff  was  not,  under 
the  stipulation,  entitled  to  recover,  and  the 
peremptory'  instnactlon  given  by  the  trial 
comt  was  con-ect.  Judgment  affirmed. 
Set  Samsou  v.  Rose,  65  N.  Y.  411. 


CHATTELS  REAL. 


RICHARDS  V.  KNIGHT. 

(42  N.  W.  584,  78  Iowa,  69.) 

Supreme  Court  of  Iowa.    June  3,  1889. 

Appeal  from  district  court.  Carroll  county; 
J.  H.  ^L^coMBKu,  Judge. 

This  is  an  action  of  replevin  for  a  quantity 
of  corn.  There  was  a  trial  by  jury,  an>l  a  ver- 
dict and  judgment  for  the  defendant,  flain- 
tifif  appeals. 

John  Brown  and  F.  M.  Powers,  for  appel- 
lant.    Macoinber  &  iSon,  for  appellee. 

ROTUROCK,  .T.  1.  It  appears  from  the 
pleadings  and  evidence  that  tlie  corn  in  ques- 
tion was  raised  upon  certain  land  in  Carroll 
county,  in  the  year  1887.  The  land  at  one 
time  belonged  to  one  Trull,  who  mortgaged 
it  to  Jennie  C.  Richards,  the  plaintiff  herein, 
to  secure  the  payment  of  a  debt.  An  action 
of  foreclosure  was  had,  and  the  laud  was  sold 
to  the  plaintiff  upon  foreclosure,  and  a  slier- 
iff's  deed  was  made  and  delivered  to  her  on 
the  23d  day  of  August,  1887.  In  the  spring 
of  that  year  the  defendant  leased  part  of  the 
land  of  Trull,  and  planted  it  in  corn.  The 
corn  was  cultivated  by  the  defendant,  and  on 
the  9th  day  of  Octciber,  1887,  the  plaintiff 
commenced  this  action,  in  which  she  claimed  I 
that  the  corn  was  her  property,  because  the 
ownership  thereof  passed  to  her  with  tlie  title 
lo  the  land  at  the  date  of  the  conveyance  to 
her  on  the  said  23d  day  of  August.  It  was 
held  in  Hecht  v.  Dettman,  56  Iowa.  67:',  7  X. 
W.  Rep.  495,  10  X.  W.  Rep.  241.  that,  as  be- 
tween the  purcluiser  of  land  at  a  foreclosure 
sale  and  a  tenant  of  the  mortg.igor,  the  atter 
is  entitled  to  crops  grown  by  him  which  are 
matured  at  the  time  the  sheriffs  deed  is  ex-  i 
ecuted,  though  not  yet  severed  from  the  1  n  I. 
This  case  was  followed  and  approved  in 
Everingiiam  v.  Braden,  58  Iowa,  133,  12  X. 
W.  Rep.  142,  and  it  was  therein  further  held 
that  the  tenant's  title  to  the  crop  was  not  af- 
fected by  the  foreclosure  until  the  e.xeciition 
and  delivery  of  the  sheriffs  deed,  although 
the  purciiaser  at  the  sheriff's  sale  was  en- 
titled to  the  deed  before  it  was  actually 
made.  The  question  presented  to  the  jury 
for  its  determination  in  this  case  was  whether 
the  corn  in  controversy  was  matured  on  the 
23d  day  of  August.  1887.  On  this  question 
farmers  who  had  seen  tiie  corn  were  called  as 
witnesses  from  all  the  country  round,  and 
there  was  a  well-defined  conflict  in  their  tes- 
timony on  the  question.  It  is  unnecessary 
lo  repeat  the  evidence  here.  It  is  sutticient 
to  say  that  the  jury  was  warranted  in  linding 
tliat  the  corn  was  planted  in  April;  tliat 
it  was  a  remarkably  early  season;  and  that  at 
the  time  named  it  was  fully  matured,  and  no 
longer  demanded  nurture  from  the  soil. 

2.  In  the  course  of  the  examination  of  the 
witnesses,  objections  were  made  to  certain 
questions,  and  answers  thereto,  and  rulings 
made  upon  the  objections  by  tiie  court  of 
which  the  plaintiff  complains.  One  witness 
was  asked   this  question:   "Don't  farmers  . 


consider  corn  mature  when  it  is  fit  to  cut 
up?"  Another  was  asked:  "You  may  state 
to  the  jury  wliether  or  not  you  corisider  the 
corn  mature  at  that  time."  Objections  to 
these  questions  were  overruled.  We  do  not 
think  it  necessary  to  set  out  the  numerous 
other  objections  which  were  made.  We  have 
given  these  iis  a  sample  for  the  purpose  of 
showing  tliat  they  were  all  without  prejudice 
to  the  appellant.  The  argument  upon  the 
two  objections  above  cited  is  that  the  ques- 
tion was,  not  what  was  considered  by  farm- 
ers, but  what  tlie  fact  was  as  to  the  maturity 
of  the  crop.  It  is  apparent  that  there  should 
be  no  reversal  on  account  of  these  rulings. 
The  use  of  the  word  "consider"  neither  mis- 
led the  jury  nor  the  witnesses.  In  the  con- 
nection in  which  the  word  occurs  in  the 
questions  it  is  used  as  synonymous  with 
"thought"  or  "believed,"  and  is  not  objec- 
tionable. We  discover  no  error  in  the  con- 
duct of  the  trial,  upon  rulings  as  to  the  ad- 
mission and  exclusion  of  evidence. 

3.  The  corn  in  question  was  taken  by  the 
sheriff  upon  the  writ  of  replevin.  The  plain- 
tiff filed  an  amendment  to  the  petition,  in 
which  It  was  averred,  in  substance,  that  after 
the  corn  was  taken  by  tlie  orticer  the  defend- 
ant. Knight,  consented  that  it  be  sold  to  one 
Armstrong  for  .S90,  the  price  being  25  cents 
a  bushel,  and  that  there  were  360  bushels, 
and  that  defendant  is  now  estopped  from  as- 
serting that  there  were  more  than  360  bush- 
els, or  that  it  was  worth  more  than  25  cents 
per  bushel.  The  plaintiff  complains  because 
the  court  did  not  instruct  the  jury  upon  the 
effect  of  this  alleged  agreement.  There  was 
no  necessity  for  such  instructions,  and  it 
would  have  been  improper  to  have  given 
them,  because  there  was  no  evidence  that  the 
corn  was  sold  to  Armstrong  by  virtue  of  an 
agreement  between  the  parties.  The  only 
evidence  upon  that  question  is  that  the  sher- 
iff sold  the  corn  to  Armstrong  at  an  under- 
estimate of  the  quantity,  and  that  when  Arm- 
strong ascertained  that  he  had  bought  it  for 
less,  than  it  w;is  worth  he  paid  the  defendant 
S25  as  a  gratuity. 

4.  The  plaintiff  requested  the  court  to  give 
to  the  jury  tlie  following  instruction:  "Where 
a  tenant  plants  a  crop  wliich  he  knows  he 
cannot  reap  before  his  landlord's  rights  cease 
and  the  equity  of  redemption  expires,  and 
the  land  passes  to  a  sheriff's  deed,  he  does  so 
at  his  peril,  and  cannot  be  heard  to  com- 
plain." The  instruction  was  refused,  and 
plaintiff  excepted,  and  assigns  the  ruling  Jis 
error.  It  may  be  that  this  instruction  is  cor- 
rect, as  an  abstract  proposition.  But  it  \\i\s 
not  erroneous  to  refuse  to  i^ive  it  to  the  jury. 
There  is  no  evidence  that  the  defendant  knew 
tliat  the  plaintiff  would  take  her  deed  before 
the  crop  matured,  and  whether  she  did  so  was 
the  very  question  submitted  to  the  jury.  It 
was  conceded  all  through  the  trial,  and  the 
court  instructed  the  jury,  that,  if  the  crop 
was  not  matured  when  the  deed  was  deliv- 
ered, the  plaintiff  was  the  owner,  and  enti- 
tled to  a  verdict. 


EMBLEMENTS. 


5.  One  ground  in  the  motion  for  new 
trial  was  the  alleged  misconduct  of  appellee's 
counsel  in  offering  to  introduce  improper 
evidence  to  the  jury,  and  in  making  the  offer 
in  the  presence  and  hearing  of  the  jury.  It 
is  claimed  that  the  motion  should  have  heen 
sustained  on  this  ground.  The  showing 
made  by  appellee's  counsel  as  to  what  oc- 
curred on  tiie  trial  :s  a  complete  exoneration 
from  the  charge  of  improper  conduct,  and 
the  motion  was  rightfully  overruled,  so  far 
as  this  ground  is  involved. 

6.  Appellant  filed  a  motion  to  stiike  ap- 
pellee's abstract  and  a  supplement  thereto 


from  the  files,  because  the  abstract  does  not 
purport  to  be  an  abstract  of  all  the  evidence, 
nor  does  it  purport  to  be  an  addition  to  ap- 
pellant's abstract,  and  because  the  supple- 
ment to  the  abstract  was  not  filed  within 
proper  time.  The  motion  will  be  overruled. 
The  appellant  was  in  no  manner  prejudiced 
by  the  failure  to  file  the  supplemental  ab- 
stract in  proper  time.  It  was  merely  a  cor- 
rection of  appellee's  abstract  in  the  respects 
in  which  appellant  claims  it  was  deficient. 
Upon  a  full  ccn-ideration  of  tlie  wliule  rec- 
ord, we  discover  no  good  reason  for  disturb- 
ing tiie  judguient.     Affirmed. 


10 


CHATTELS  HEAL. 


KirLIXGER  T.  GREEN. 
(28  N.  W.  121,  61  Mich.  340.) 
Supreme  Court  of  Michigan.    May  6.  1886. 
Error  to  Eaton. 

Van  Zile  &  Fox.  for  appellant.  Huggett  & 
Smith,  for  appellee. 

MORSE.  J.  The  plaintiff  in  this  action,  on 
the  fifteenth  day  of  September.  ISSo.  entered 
into  the  following  agreement  with  the  defend- 
ant: "This  agreement,  made  and  entered  in- 
to this  fifteenth  day  of  September.  1883.  be- 
tween Alonzo  Green,  of  the  city  of  Charlotte, 
toiinty  of  Eaton,  and  state  of  Michigan,  of 
the  first  part,  and  Jonas  Kiplinger.  of  the  sec- 
ond part,  wituesseth,  that  said  second  party 
hereby  agrees  to  move  onto  and  cultivate  and 
farm  the  said  first  party's  farm,  where  he  now 
resides,  lying  in  the  town  of  Eaton,  and  city 
of  Charlotte,  in  said  county,  for  the  term  of 
five  veal's  and  five  months  from  the  first  day 
of  November,  1883.  on  the  following  terms, 
viz.:  Said  second  party  is  to  do.  or  cause  to 
be  done,  all  the  work,  finnish  all  the  teams 
and  implements  necessary  in  so  farming  the 
premises,  and  is  to  furnish  one-half  of  all  the 
seed  to  be  sowed  or  planted:  and  deliver  one- 
half  of  all  grain  raised  on  said  farm  to  said 
tirst  party,  in  the  granary  on  said  farm,  and 
oiie-half  of  the  potatoes  and  vegetables  that 
shall  be  raised,  after  they  are  dug,  on  said 
farm,  as  said  first  party  may  direct.  Said 
first  party  is  to  furnish  one-half  of  the  seed 
for  all  such  crops.  Said  first  party  is  also  to 
have  one-half  of  all  the  hay.  straw,  and  corn- 
stalks, after  they  are  properly  cut  and  secured 
by  said  second  party,  as  the  first  party  may 
direct.  Each  party  is  to  have  one-half  of  the 
apples,  and  pick  or  gather  the  same.  Said 
first  party  is  to  have  all  the  cherries  and 
grapes  he  wishis.  that  may  grow  on  said  farm. 
Each  party  is  to  have  one-half  of  the  pasture, 
also  to  furnish  an  equal  amount  of  poultry, 
and  .share  equally  in  its  products.  Said  sec- 
ond party  is  to  have  a  good  garden,  and  divide 
the  same  as  the  other  products  of  the  farm. 
Said  second  party  is  to  pay  all  the  highway 
taxes  on  said  farm,  and  is  to  keep  in  repair 
all  the  fences,  and  make  such  new  fences  as 
may  be  necessary  on  said  farm,  said  first 
party  furnishing  the  materials  to  repair  and 
make  the  same:  also  to  keep  in  repair  all 
buildings  occupied  by  him.  and  the  wind-mill 
on  said  farm:  and  to  have  the  use  of  all  the 
dwelling-house  on  said  farm,  except  the  cham- 
bers, hall,  and  parlor  of  the  upright  brick 
house,  which  shall  be  exclusively  said  first 
party's;  also  such  portions  of  the  cellar  as  he 
may  desire  to  use.  Said  second  party  is  also 
to  use  what  barn  room,  stabling,  and  granary 
that  is  necessary  to  accommodate  his  farming 
work.  All  horses  and  other  stock  belonging 
wholly  to  said  second  party  is  to  be  fed  from 
said  second  party's  share  of  the  products  of 
said  farm,  or  that  which  he  may  purchase. 


All  sheep  or  other  stock  or  poultry  owned  by 
both  parties  shall  be  taken  care  of  by  said 
second  party,  and  fed  from  the  products  be- 
longing to  both  paities.  Said  second  party 
is  to  milk  the  cow  or  cows  of  said  first  party, 
and  let  him  have  aU  the  milk  he  wants  to  use 
for  his  family,  and  the  rest  to  make  into  but- 
ter for  said  first  party's  family  use.  Said  sec- 
ond party  is  to  have  all  the  tire-wood  neces- 
sary for  his  use.  from  said  farm,  and  from 
the  80  acres,  in  the  town  of  Carmel.  belonging 
to  said  first  party,  as  he.  said  first  party, 
may  direct.  Such  pieces  of  land  as  are  now 
let  on  said  farm  to  other  persons  are  excepted 
imtil  their  lease  expires,  and  then  s^iid  second 
party  is  to  farm  such  pieces.  Said  second 
party  is  to  feed  and  care  for  the  undivided 
sheep  and  cows  of  said  first  party,  the  coming 
winter,  from  the  hay  and  other  feed  owned 
by  said  first  party.  It  is  expressly  under- 
stood and  agreed  that  said  first  party  is  to 
remain  in  fuU  possession,  and  have  fuU  con- 
trol, of  said  farm,  and  all  that  pertains  to  it. 
and  have  full  directions  as  to  how  all  and  what 
crops  shall  be  raised  on  it  by  said  second 
party.  All  of  SJiid  farming  shall  be  done  in  a 
good,  thorough,  workman-like  manner  by  said 
second  party.  Upon  the  non-performance  of 
any  of  the  above  specifications  this  agreement 
shall  immediately  become  null  and  void.  Both 
of  said  parties  hereby  agree  to  all  of  the  above 
mentioned  specifications.  Alonzo  Green.  Jo- 
nas Kiplinger."  Under  this  agreement  the 
plaintiff  moved  upon  the  farm  about  the  twen- 
ty-third day  of  October,  18S3.  and  the  follow- 
ing summer  put  in  a  crop  of  wheat.  In  Sep- 
tember, 1884.  he  served  the  following  notice 
upon  the  defendant:  "Charlotte.  Mich.,  Sep- 
tember 30.  1884.  Mr.  Alonzo  Green.  Esq. — 
Dear  Sir:  You  are  hereby  notified,  and  duly 
informed,  that  I  shall  vacate  the  premises  and 
farm  on  which  I  now  reside,  the  same  belong- 
ing to  you,  on  the  first  day  of  April,  A.  D. 
188.3.  for  the  following  reasons:  (1)  Owing 
to  the  unreasonableness  of  the  contract  framed 
by  you,  which  I  now  find,  and  am  aware,  is 
contrary  to  all  farming  customs  of  the  county 
and  vicinity.  (2)  On  account  of  the  deception 
and  fraud  practiced  by  you  in  framing  said 
contract,  material  parts  of  which  you  failed 
to  read  to  me.  and  which  I  was  not  aware  it 
contained.  Yours.  Jonas  Kiplinger,"— and 
moved  off  from  the  premises  the  second  day 
of  April,  1885.  He  testified  that  after  the 
service  of  the  notice  he  spoke  to  the  defendant 
once,  and  told  him  that  if  he  would  give  him 
a  better  chance  than  he  had  imder  the  con- 
tract he  would  stay  on,  but  gave  him  to  under- 
stand that  he  would  not  stay  there  unless  bet- 
ter terms  were  given  him.  The  defendant  let 
a  portion  of  the  premises  to  another  tenant, 
who  moved  upon  the  same  the  day  before  the 
plaintiff  left.  The  plaintiff  testified,  however, 
that  he  left  the  place  in  pursuance  of  the  in- 
tention manifested  in  his  notice,  and  because 
he  found  he  could  not  stand  the  bargain  con- 
tained in  the  contract.  The  plaintiff  under- 
took to  harvest  the  wheat  put  in  by  him  the 


EMBLEMENTS. 


11 


summer  before,  but  was  prevented  from  doing 
so  by  the  defendant,  who  gathered  the  same. 
He  made  a  written  demand  upon  the  defend- 
ant for.  it,  and  brought  replevin.  Upon  the 
conclusion  of  the  plaintiff's  case,  showing 
these  facts,  the  counsel  for  the  defendant, 
upon  the  trial,  moved  to  strike  out  the  evi- 
dence introduced  in  plaintiff's  behalf  as  in- 
sufficient to  warrant  a  recovery,  which  the 
court  did.  and  thereupon  directed  the  jury  to 
find  a  verdict  for  defendant. 

The  plaintiff's  counsel  contends  that  this 
was  error,  and  that  upon  the  facts  shown  the 
plaintiff'  was  entitled  to  recover  for  one-half 
the  wheat;  that  the  agreement  between  the 
parties  was  not  a  lease,  but  a  contract  to 
crop  the  land  on  shares;  that  the  relation  of 
landlord  and  tenant  did  not  exist;  that  the 
parties  were  tenants  in  common  in  the  wheat; 
and  by  the  action  of  the  defendant  in  cutting 
and  threshing  the  same,  and  refusing  to  ac- 
count for  any  of  it  to  plaintiff,  he  was  guilty 
of  a  conversion  of  plaintiff's  share,  for  which 
plaintiff  was  entitled  to  bring  replevin.  He 
insists  that  the  abandonment  of  the  contract 
and  the  farm  cuts  no  figure  in  the  case,  as 
plaintiff's  interest  in  the  crop  vested  as  soon 
as  the  same  was  sown;  that  it  became  per- 
sonal property,  and  he  might  have  sold  his 
share  before  he  left  the  place,  and  the  pur- 
chaser obtained  a  valid  title  thereto. 

AVe  find  no  error  in  the  action  of  the  circuit 
court.  It  can  make  no  difference  in  the  law 
applicable  to  the  facts  in  this  case  what  was 
the  particular  name  or  nature  of  the  plaintiff's 
holding  under  this  agreement.  His  rights 
must  be  gathered  from  the  contract,  and  con- 
sidered in  relation  to  its  terms.  Whether  it 
be  called  a  lease  or  a  mere  cropping  agree- 
ment, its  construction  and  its  eft'ect.  as  far  as 
the  plaintiff's  claim  to  this  crop  of  wheat  is 
concerned,  must  be  the  same.  He  went  upon 
the  farm  and  put  in  the  wheat  under  and  bj' 
virtue  of  this  instrument,  and  whatever  rights 


he  can  legally  claim  must  accrue  from  and 
rest  upon  its  provisions;  and  his  counsel  up- 
on the  trial  in  the  court  below  expressly  stat- 
ed that  he  based  his  right  to  recover  upon 
the  contract,  and  his  acts  under  it.  When 
he  voluntarily  abandoned  the  farm,  and  for- 
feited the  contract  under  his  notice,  he  could 
no  longer  claim  any  rights  under  it.  He  ad- 
mits that,  after  serving  the  notice,  he  did 
nothing  upon  the  farm  except  to  care  for  the 
stock  upon  it.  There  is  no  theory  of  the  law 
under  which  the  plaintiff"  could  recover  one- 
half  of  this  crop  under  a  contract  which  he 
had,  upon  his  own  motion,  repudiated.  If  so, 
he  might  have  abandoned  the  farm,  and 
thrown  up  the  contract  the  next  day  after  the 
wheat  was  sown,  and  held  his  share.  If,  be- 
fore his  surrender  of  the  agreement  and  the 
possession  of  the  farm  under  it,  he  had  sold 
his  share  of  the  crop  to  another,  purchasing 
in  good  faith,  such  assignee  of  his  interest 
would  have  been  entitled  to  reap  and  hai-vest 
the  wheat  under  tliis  agreement,  because  of 
equities  which  the  plaintiff  cannot  assert  after 
his  rescission  of  the  contract,  the  crop  being 
considered  while  the  agreement  is  in  force  as 
personal  property,  subject  to  sale  or  levy  as 
such.  But  when  the  plaintiff  abandoned  the 
premises,  and  surrendered  the  contract,  the 
wheat  became  a  part  of  the  land,  and  went 
with  it.  Chandler  v.  Thurston,  10  Pick.  20.".; 
Caiiienter  v.  Jones,  03  111.  517. 

The  doctrine  of  emblements  does  not  appl.v. 
The  term  of  the  plaintiff's  occiipancy  of  the 
premises  was  certain  and  definite  under  the 
contract.  It  was  noi  determined  by  the  act 
of  the  defendant,  nor  by  any  other  cause 
than  the  violation  by  the  plaintiff  of  the  agree- 
ment under  which  he  held.  He  cannot  profit 
by  his  own  wrong. 

The  judgment  of  the  court  below  is  affirmed, 
with  costs. 

(The  other  justices  concurred.) 

See  Dorsett  v.  Gray.  98  lud.  273. 


12 


CHATTELS  REAL. 


CARNEY   V.    MOSHER    et    al. 

(56  N.  W.  935.  97  Mich.  554.) 

Supreme   Court   of   Michigan.    Nov.    24,    1893. 

Error  to  circuit  court,  Hillsdale  county;  Vic- 
tor H.  Lane,  Judge. 

Action  of  trover  by  Darwin  H.  Carney 
against  Orrin  B.  Mosher.  Thomas  J.  Lowry, 
Lucien  Walworth,  and  Henry  S.  Walworth, 
for  the  conversion  of  certain  wheat.  There 
was  a  judgment  entered  on  the  verdict  of 
a  jury  directed  by  the  court  in  favor  of  de- 
fendants, and  plaintiff  brings  error.  Af- 
firmed. 

Geo.  A.  Knickerbocker  and  Wm.  C.  Chad- 
wick,  for  appellant.  C.  A.  Shepard  and  St. 
John  &  Lyon,  for  appellees. 

MONTGOMERY,  J.  Tlie  plaintiff  brought 
trover  for  wheat  grown  upon  laud  owned 
by  defendant  Orrin  B.  Mosher.  The  wheat 
was  sown  by  Alvin  L.  Masher  while  occu- 
pying the  land  as  the  tenant  of  Orrin  B.  The 
wheat  was  harvested  bj-  defendant  Mosher, 
and  sold  to  defendant  Henry  S.  Walworth, 
who,  it  is  claimed,  had  notice  of  plaintiff's 
rights.  Prior  to  the  spring  of  1S90.  Alvin 
L.  Mosher  had  occupied  the  land  under  a 
written  lease,  and  in  the  spring  of  that  year 
renewed  his  lease  for  one  year  by  oral  agree- 
ment. There  had  been  a  previous  lease, 
and,  as  the  testimony  of  pLvintiff  shows,  on 
the  occasion  of  the  present  letting,  Alvin  re- 
fused to  pay  the  rent  previously  reserved, 
imless  he  should  have  the  privilege  of  put- 
ting the  land  all  into  wheat,  and  it  was 
agreed  that  he  might  do  so.  He  proceed- 
ed to  sow  the  land  to  wheat,  and  in  January. 
1891,  sold  the  growing  crop  to  plaintiff.  In 
the  spring,  Alvin  surrendered  possession  to 
Orrin  B.,  who  proceeded  to  reap  the  crop, 
after  notice  of  plaintiff's  purchase.  The  cir- 
cuit judge  directed  a  verdict  for  defendants 
on  the  ground  that  the  lease  was  oral,  and 
that  the  implied  provision  that  the  lessee 
should  have  the  right  to  reap  the  crop  of 
wheat  was  void,  imder  the  statute  of  frauds. 
The  defendants  contend  that  this  holding 
should  be  sustained:  and,  further,  as  it  ap- 
pears that  the  rent  was  not  paid  during  the 
year,  nor  since,  that  the  lessee  had  no  right 
to  the  crop,  and  that  a  purchaser  would  have 
no  greater  right  than  he;  and,  further,  that 
if  it  be  conceded  that  the  purchaser  of  the 
crop  of  a  tenant  would  not,  in  general,  be  af- 
fected by  a  subsequent  default  of  the  ten- 
ant, the  present  case  is  an  exception  to  the 
iTile,  for  the  reason,  as  it  is  contended,  that 
the  transfer  from  Alvin  Mosher  to  plaintiff 
was  for  the  purpose  of  defrauding  the  de- 
fendant Orrin  B.  out  of  the  rent.  It  is.  how- 
ever, a  sufficient  answer  to  this  last  conten- 
tion that  the  fraud  is  not  admitted,  nor  to 
be  deduced  as  a  legal  consequence  from  con- 
ceded facts.  It  would  therefore  be  a  ques- 
tion for  the  jury,  by  the  express  terms  of 
the  statute.     Section  620G,  How.  St 


If  it  be  assumed  that  the  tenant  was  in 
possession  by  right,  and  under  a  lease  which 
gave  him  the  right  to  reap  the  crop,  as  well 
as  to  sow,  it  follows  that  inasmuch  as  he 
sold  the  crop  before  any  default  on  his  part, 
so  far  as  appears,  and  certainly  before  for- 
feiture, the  purchaser  from  him  obtained  a 
title  which  could  not  be  defeated  by  the 
lessee's  subsequent  default  This  is  the  rule 
established  in  this  sttte  by  Nye  v.  Patter- 
son. 35  Mich.  413.  and  Miller  v.  Havens.  51 
Mich.  482,  1(3  N.  W.  Rep.  865.  See,  also, 
Dayton  v.  Vandoozer,  39  Mich.  749.  The 
question  for  our  determination,  therefore,  is 
the  one  upon  which  the  case  was  decided 
below,  namely,  did  the  parol  lease  for  one 
year,  with  the  agreement  that  the  tenant 
might  sow  the  land  to  wheat,  give  him  a 
!  right  to  enter  after  the  expiration  of  his 
I  lease,  and  reap  the  crop?  On  the  part  of 
[  the  defendants,  it  is  contended  that  the  right 
I  claimed  is  in  the  nature  of  an  interest  in 
j  land,  and  that  to  sustain  the  right  to  reap 
;  the  crop  would  be.  in  eft'ect  extending  the 
i  lease  into  the  second  year,  and  that  said  con- 
.  tract  is  therefore  void,  under  the  statute  of 
!  frauds.  On  the  other  hand,  it  is  contendetl 
!  that  the  lease  terminated,  according  to  its 
terms,  at  the  end  of  one  year,  and  that  the 
right  to  enter  in  and  re.ip  the  crop  is  one 
growing  out  of  the  nature  of  the  previous 
lease,  which  has  expired.  It  is  very  evident 
that  whatever  the  right  to  enter  and  reap 
the  crop  be  called,  it  was  a  right  which  could 
not  be  exercised  within  one  year.  We  think 
it  is  equally  evident  that  it  was  an  interest 
in  land.  The  exclusive  use  of  the  land  was 
required  during  three  months  after  the  end 
of  a  year  from  the  letting,  before  the  crop 
would  ripen.  That  this  was  a  burden  upon 
the  estate  in  the  land  is  too  plain  for  argu- 
ment It  was  held  to  be  an  interest  in  the 
land  in  Reeder  v.  Sayre.  70  N.  Y.  183.  In  the 
present  case,  the  lessee  was  in  possession  at 
the  time  of  entering  into  the  contract,  and 
continued  in  possession  imder  the-void  lease. 
This  constituted  him  a  tenant  at  will,  imder 
our  holdings.  See  Huyser  v.  Chase.  13  Mich. 
98.  The  tenancy  could  be  terminated  by  ei- 
ther party  on  three  months'  notice  to  quit. 
The  tenant  did  not  wait  for  this,  but  left  the 
premises  in  January  or  February.  1891.  He 
paid  no  rent  The  owner  thereupon  took 
possession,  as  he  had  a  right  to  do,  and  as 
he  could,  but  for  the  lessee's  peaceable  sur- 
render, have  done  by  a  noMee  to  quit.  If 
it  be  suggested  that  treating  the  lease  as 
void,  under  the  statute  of  frauds,  the  ten- 
ant should,  because  of  his  previous  relations, 
be  treated  as  a  tenant  from  year  to  year,  ho 
stands  in  no  better  situation,  for  the  year 
would  be  terminatt^l.  und;T  such  holding, 
March  31,  1801.  giving  the  owner  the  right 
to  possession  thereafter,  and  the  right  to 
reap  the  crop.  The  judgment  will  be  affirm- 
ed, with  costs.    The  other  justices  concurred. 


FJXTUKES. 


13 


MICHIGAN   MUT.   LIFE   INS.   CO.   v. 
CRONK. 

(52  N.  W.  10.35,  93  Mich.  49.) 

Supreme   Court   of   Michigan.      July  28,   1892. 

Error  to  circuit  court,  St.  Clair  county;  Ar- 
thur L.  Canfield,  Judge. 

Replevin  by  the  Michigan  Mutual  Life  In- 
surance Company  against  Edward  Cronlv. 
Judgment  for  plaintiff,  and  defendant  brings 
error.     Affirmed 

Frank  Whipple,  for  appellant.  Phillips  & 
Jenks,  for  appellee. 

MONTGOMERY,  J.  The  defendant,  on  the 
18th  day  of  June,  1887,  contracted  in  writ- 
ing to  purchase  of  one  William  L.  Jenlcs  the 
N.  W.  1/4  of  the  S.  W.  %  of  section  19,  town- 
ship 7  N.,  range  16  E.  The  contract  was  in 
the  usual  printed  form,  and  contained  a  cov- 
enant on  the  part  of  the  defendant  that  he 
would  not  commit,  or  suffer  any  other  person 
to  commit,  any  waste  or  damage  to  said  lands 
or  buildings,  except  for  firewood  or  other- 
wise, for  home  use,  while  clearing  off  the 
lands  in  the  ordinary  manner.  Immediately 
after  entering  upon  the  lands  he  erected  a 
small  dwelling  house  thereon,  and  lived  in  it 
for  two  years.  He  then  made  default  in  his 
payments,  and  the  plaintiff,  to  whom  tlie 
contract  had  in  the  mean  time  been  assign- 
ed by  Jenks,  terminated  the  contract,  and  re- 
(luired  the  defendant  to  surrender  possession. 
The  house  was  a  one-story  frame  house,  20 
by  2G,  and  suitable  for  the  purposes  of  a  dwell- 
ing house  to  be  used  upon  the  land  in  ques- 
tion. After  tne  removal  of  the  liouse  fi'om 
the  premises,  it  was  placed  upon  a  40  across 


the  street,  and  plaintiff,  after  demand,  brought 
replevin.  The  circuit  judge  directed  a  verdict 
for  the  plaintiff,  and  the  defendant  appeals. 

Two  questions  only  are  presented  in  ap- 
pellant's brief.  It  is  first  claimed  that  re- 
plevin will  not  lie,  because  the  house  had 
become  a  fixture  upon  tlie  land  to  which  it 
was  moved,  and  was  therefore  real  estate; 
second,  that,  as  the  house  was  occupied  as  a 
homestead  by  the  defendant  and  his  family, 
the  wife  was  a  necessary  party.  We  think 
that  when  this  house  was  erected  upon  the 
land  held  under  contract  it  became  a  part 
of  the  realty,  and  as  such  the  property  of  the 
owner  of  the  land,  subject  only  to  the  riglits 
of  the  purchaser  therein.  Kingsley  v.  Mc- 
Farland  (Me.)  19  AU.  442;  Milton  v.  Colby, 
5  Mete.  (Mass.)  7S;  Iron  Co.  v.  Black,  70  Me. 
473;  Tyler,  Fixt.  78.  It  being  severed  from 
the  land,  it  became  personal  propertj',  and 
replevin  would  lie  unless  it  became  affixed 
to  the  realty  by  the  tortious  act  of  the  de- 
fendant in  removing  it  and  placing  it  upon 
other  lands.  But  we  think  no  sucli  legal  ef- 
fect can  be  given  to  the  defendant's  wrong. 
The  house  was  moved  upon  laud  of  a  third 
party.  There  was  no  privity  of  title  between 
the  ownership  of  the  liouse  and  the  owner- 
ship of  the  land  to  which  it  was  removed.  The 
cases  cited  by  defendant  of  MoiTisou  v.  Berry, 
42  Mich.  389,  4  N.  W.  731,  and  Wagar  v. 
Briscoe,  38  Mich.  587,  do  not  apply.  The 
house  remaining  personal  property  in  the 
wrongful  possession  of  defendant,  it  follows 
that  no  hoinesread  right,  wliicli  consists  in  an 
interest  in  lauds,  attaclied. 

The  judgment  is  affirmed,  with  costs.  The 
other  justices  concurred. 


14 


CHATTELS  REAL. 


SMITH  V.  BLAKE. 

(55  X.  W.  978.  96  Mich.  542.) 

Snpremp   Court    of    Miehigran.    July   2G.    1893. 

Appeal  from  circuit  court,  Cheboygan 
county,  in  chancery;    C.  J.  Pailthorp,  Judge. 

Action  by  Sarah  I.  Smith  against  Henry 
A.  Blake  to  enjoin  the  removal  of  certain 
ni.-ichinery  from  a  foundry  of  which  plain- 
tiff is  the  mortgagee  and  purchaser  at  fore- 
closure sale.  From  a  decree  for  plaintiff, 
defendant   appeals.    Affirmed. 

George  E.  Frost,  (Oscar  '  lams,  of  coun- 
sel,) for  appellant.  Henry  W.  :MacArthur, 
(George  W.  Bell,  of  counsel,)  for  appellee. 

HOOKER,  C.  J.  Complainant  is  the  owner 
of  a  mortgage  upon  certain  premises  in  the 
city  of  Cheboygan,  used  as  a  foundiy,  ma- 
chine shop,  and  blacksmith  shop.  This  mort- 
gage was  made  Decombei*  14,  1882,  for 
$2,(X)0,  with  interest  at  8  per  cent.,  and  was 
foreclosed  by  advertisement,  the  premises 
being  bid  in  for  $2,4(i2.«l  by  the  complain- 
ant, who  (the  bill  states)  will  become  en- 
titled to  a  sheriffs  deed  upon  July  3,  1892, 
at  wliieh  time  her  investment  will  amount 
to  !?2,. 594.82.  The  bill  is  tiled  to  restrain  the 
defendant  from  removing  certain  machinery 
upon  the  premises,  viz.:  One  iron  planer; 
one  upright  power  drill;  one  shaper;  three 
iron  lathes;  one  wood  lathe;  one  upright 
engine;  one  horizontal  boiler;  one  band  saw 
and  frame;  one  rip  saw  and  frame;  one 
foundry  cupola  furnace  and  blower;  the 
belting,  shafting,  pulleys,  and  boxes  neces- 
sary for  the  running  and  management  of 
the  above  machinery. 

It  is  contended  that  the  bill  must  be  dis- 
ndssed  iinder  the  demurrer  clause  in  the 
aiiswer,  for  the  following  reasons,  viz.:  (1) 
The  bill  does  not  allege  that  the  articles 
named  are  fixtures;  (2)  that  it  fails  to  show 
any  claim  of  the  property  in  controversy  by 
the  defendant,  or  threat  of  removal;  (3) 
that  no  injunction  can  properly  issue  upon 
information  and  belief.  Had  a  demurrer 
been  filed,  these  objections  would  have  been 
fatal.  But  the  law  does  not  favor  the  rais- 
ing of  technical  questions  after  hearing  upon 
the  merits,  and  will  not  permit  the  dismissal 


of  a  bill  upon  a  demurrer  clause  in  the 
answer  unless  the  bill  is  fatally  defective, 
and  past  remedv  bv  amendment.  Barton  v. 
Gray.  48  Mich.  164,  12  N.  W.  Rep.  30;  Bauman 
V.  Bean,  57  Mich.  1.  23  N.  W.  Rep.  451;  Lamb 
v.  Jeffrey,  41  Mich.  720.  3  N.  W.  Rep.  204.  The 
bill  impliedly  states  that  these  articles  are  part 
of  the  realty.  When  we  read  this  sixth  clause 
in  the  light  of  the  whole  bill,  no  other  inference 
can  be  drawn.  The  failure  to  allege  threats 
could  have  been  tlie  subject  of  amendment  in 
the  couit  below,  and  probably  would  have  been 
had  any  one  considered  it  necessary.  Threats 
were  not  even  pi-oved,  but,  as  defendant's 
answer  claimed  this  property  to  be  person- 
alty, not  covered  by  the  mortgage,  and  this 
question  was  all  that  was  htigated,  we  may 
consider  the  intention  to  remove  admitted. 
This  brings  us  to  the  merits  of  the  case. 
The  proof  shows  that  all  of  these  articles 
were  placed  in  a  building  erectetl  many 
years  ago  for  a  foundry  and  mac^hine  shop 
by  the  o\\Tier  of  both,  and,  while  some  of 
the  machines  were  not  fastened  to  the  soil 
or  building,  they  were  heavy,  and  it  was 
unnecessary.  All  were  adapted  to  the  busi- 
ness for  which  the  building  was  erected. 
Furthermore,  the  preponderance  of  the 
proof  shows  that  the  parties  understood 
that  this  property  was  to  be  covered  by  the 
mortgage.  We  think  the  decision  of  the 
circuit  court  in  holding  that  the  mortgage 
covered  these  articles  was  in  accord  with  tlie 
Michigan   authorities. 

A  point  is  made  that  an  injunction  can- 
not pi'operly  be  granted  when  the  bill  fails 
to  allege  the  reqiusite  facts  upon  the  oath 
of  the  complainant.  That  is  tiiie  where  the 
injunction  sought  is  preliminary,  but  we  see 
no  reason  why  relief  by  injunction  cannot 
be  based  upon  proof  presented  upon  the 
hearing.  In  this  case,  while  the  injunction 
should  not  have  been  allowed,  it  was  per- 
mitted to  stand  until  the  hearing,  and,  "suffi- 
cient equity  appearing,"  it  should  be  per- 
petuated. Clark  V.  Young,  2  B.  Mon.  57. 
The  record  may  be  remanded,  with  direc- 
tions that  complainant  be  allowed  to  amend 
her  bill,  whereupon  the  decree  may  stand 
affirmed.  Complainant  will  recover  costs  of 
both  courts.    The  other  justices  contnirred. 


FIXTURES. 


15 


ALDINE  MANUF'G  CO.  v.  BARNARD. 

(48  N.  W.  280,  84  Mich.  632.) 

Supreme   Court   of   Michigan.      Feb.   27,    1891. 

Appeal  from  circuit  court,  Kent  county; 
William  E.  Grove,  Judge. 

M.  H.  Wallier,  for  appellant.  More  &,  Wil- 
son, for  appellee. 

LONG,  J.  This  cause  was  tried  in  the 
Kent  circuit  court  without  a  jury,  and  the 
court  found  the  following  facts  and  conclu- 
sions of  law: 

"First.  On  the  21st  day  of  October,  A.  D. 
1887,  plaintiff  sold  to  defendant  a  bill  of  Al- 
dine  gmtes,  mantels,  and  hearths,  to  be  placed 
in  a  blocli  of  tenement-houses,  owned  by  de- 
fendant in  the  city  of  Grand  Rapids.  This 
bill  of  goods  includes  three  No.  18  grates.  No 
time  was  given  or  aslied  on  said  bill,  and  on 
November  1,  1S87,  defendant  paid  one  hun- 
dred dollars  by  check  generally  upon  said  bill, 
and  it  was  so  applied. 

"Second.  In  Februaiy,  18^9,  plaintiff  brought 
suit  in  assumpsit  against  defendant  in  jus- 
tice's court,  to  recover  the  balance  due  on  the 
bill,  and  declareti  on  the  common  counts  only, 
filing  the  following  bill  of  particulars  as  its 
only  claim: 

Grand   Rapids,    Mich..    February   27th,    1889. 
Bertram   W.   Barnard   in   account  with   Aldine 
Manufacturing  Company. 
1887. 
Oct.  21.  To  .3   No.   18   Aldine  fire- ^ 

places I 

To    1    No.   22   Aldine   fire- 
place     

To  4  mantels 

To  4  tile  hearths 

To  11  hours  springing  arch- 


$200 


To  sand  2.50;    cement  $1.  .. 

To  %  barrel  calc.  plaster.  . 

To  tire  .clay    

To  four  hours  tearing  put 
Bissel  grate   from    house. 

To  mason  and  tender  set- 
ting No.  22  grate  in  house 


5  00 
5  00 

1  10 
20 

2  00 
4  00 


1S87.  $214  05 

Nov.  1st.  By    cash KM)  00 


To   1  yr.  4  months   Inst,   at 
G   p.    c 


$114  0.". 
9  12 


Balance    .^123  17 

"This  suit  resulted  in  a  judgment  of  no 
cause  of  action,  and  an  appeal  was  taken 
from  such  judgment  to  the  circuit  court  for 
the  county  of  Kent.  Said  cause  came  on 
for  trial  on  the  8th  day  of  .Tune,  1889,  before 
me  and  a  jury.  A  copy  of  defendant's  plea 
and  notice  under  the  plea  in  said  cause  is 
liereto  attached  marked  'Exhibit  A.'  On  the 
trial  of  said  cause  defendant  testihed  he  had 
paid  in  full  for  said  bill  of  goods,  except  said 
3  No.  18  grates.  It  was  admitted  by  plain- 
tiff that  if  the  jury  should  find  that  on  the 
sale  of  said  grates  plaintiff  warrautt^i  them 
as  claimed  by  defendant  in  his  testimony, 
plaintiff  could  not  recover  for  said  3  No.  18 
grates,  plaintiff  then  and  there  admitted  that 


said  grates  would  not  fulfill  the  warranty  as 
claimed  by  the  defendant,  and,  upon  said  ad- 
mission being  made  by  plaintiff,  the  court 
ruled  that  the  evidence  should  be  confined  to 
the  question  of  whether  the  warranty  testi- 
fied to  by  defendant  was  in  fact  made;  and 
the  defendant,  having  tendered  .'P18.02  as  the 
amount  admitted  to  be  due,  he  coidd  not  re- 
cover any  judgment  for  damages  against 
plaintiff  under  his  plea  of  recoupment.  De- 
fendant thereafter  testified  that  before  the 
commencement  of  suit  he  had  ordered  plain- 
tiff to  remove  said  grates  for  the  reason  that 
<hey  were  woi'thless,  and  would  not  work,  and 
ihat  defendant  would  not  pay  for  them,  to 
which  plaintiff's  manager  and  secretarj'  re- 
plied that  he  woidd  not  do  "it;  the  grates  were 
all  right;  and  that  defendant  would  have  to 
pay  for  them.  Said  cause  was  tried  and  sub- 
milted  to  the  jury  on  the  theory  that  if  the 
warranty  which  defendant  claimed  was  made 
when  the  grates  were  sold  was  in  fact  made 
plaintiff  could  not  recover,  and  that  defend- 
ant could  not  recover  damages  on  account  of 
breach  of  said  warranty  for  the  reason  that 
his  tender  of  the  amount  admitted  to  be  due 
plaintiff'  would  prevent  such  recover^'.  The 
court  charged  the  jury  as  follows:  'Gentle- 
men of  the  jury:  There  is  but  a  single  ques- 
tion of  fact  for  you  to  determine  in  order  to 
dispose  of  this  case.  The  sale  of  the  goods 
and  deliverj'  and  the  price  are  undisputed. 
The  defendant  claims  that  the  sale  was  ac- 
companied by  an  express  warranty  that  the 
grates  would  do  the  work  of  healing  the 
rooms;  that  one  grate  would  do  the  work  of 
heating  one  suite  of  rooms.  The  plaintiff 
claims  that  no  stich  warranty  was  given,  but, 
upon  the  contrary,  he  stated,  as  he  claims,  to 
the  defendant,  at  the  time  the  selection  of  the 
grates  was  made,  that  he  ought  to  take  the 
larger  size,  as  they  would  give  better  satis- 
faction. You  have  heard  the  testimony. 
Now,  one  of  these  claims  is  true,  and  the  oth- 
er is  not.  It  was  conceded  on  the  trial  that 
if  you  should  find  that  the  warnmly  which 
the  defendant  claims  was  made  was  in  fact 
made,  the  plaintiff  has  no  right  of  action. 
Therefore  all  there  is  of  the  case,  gentlemen. 
is  for  you  to  determine  whether  or  not  that 
warranty  which  the  defendant  relies  on  was 
made  or  not,— the  warranty  that  the  grates 
would  do  the  work  of  heating  the  rooms.  If 
you  find  that  the  warranty  was  made  as 
claimed  by  the  defendant,  your  verdict  will 
be  "No  cause  of  action;"  if  yoti  find  that  it 
was  not  made,  your  verdict  will  be  for  the 
plaintiff"  for  the  amount  of  his  claim,  so  far 
as  it  is  proved  by  the  evidence.  I  think  there 
is  no  claim  but  that  it  is  proved,  with  the  ex- 
ception of  the  .f2.30;  and  I  suppose  you  would 
concede.  Mr.  Walker,  the  plaintiff'  is  entitled 
to  recover  .$U)4..")(J.  Mr.  Walker.  I  don't  dis- 
pute the  amount.  The  Court.  Then  if  you 
find  for  the  plaintiff  your  verdict  will  be  for 
the  plaintiff,  and  j'ou  are  to  nssess  his  damages 
at  .$104. .")().  If  you  find  for  the  defendant 
yoiu"   verdict    will  be,   "No  cause  of   action." 


16 


CHATTELS  REAL. 


Mr.  Walker.  You  have  used  the  term  "war- 
rauty"  all  through.  I  would  like  to  have  it 
stated  what  the  defendant  testifies  to  con- 
stitute a  warranty.  The  Court.  If  you  find 
iliat  the  agent,  Mr.  Phillips,  assured  the  de- 
fendant—stated to  him— that  one  of  these 
grates  would  do  the  work  of  heating  one  of 
these  suites  of  rooms,  that  would  constitute 
a  warranty.  Swear  an  otficer.'  Under  the 
instruction  of  the  court  said  jury  rendered  a 
verdict  of  no  cause  of  action,  and  judgment 
was  entered  accordingly,  which  judgment  has 
never  been  appealed  from  or  vacated. 

••Third.  After  the  termination  of  said  suit 
plaintiff,  by  its  manager,  James  T.  PhUlips, 
demanded  from  defendant  said  three  grates. 
Defendant  said  in  'reply  that  he  would  refer 
the  matter  to  Myron  H.  Walker,  his  attorney; 
and  soon  after  plaintiff  received  a  letter  from 
said  Walker,  refusing,  on  behalf  of  defend- 
ant, to  allow  plaintiff  to  remove  said  grates, 
which  letter  is  as  follows:  'Grand  Rapids, 
Mich.,  0-21,  1S89.  The  Aldine  MTg  Co., 
City — Gent'n:  Regarding  your  request  for 
leave  to  take  out  and  take  away  the  Aldine 
grates  in  Mr.  Barnard's  house,  1  have  to  say 
that  I  find  no  authority  of  law  or  fotmdation 
of  right  for  such  action.  These  grates  were 
sold  unconditionally,  on  what  the  jury  has 
determined  was  a  false  warrantj-,  and  by 
your  own  act  were  solidly  built  into  the 
thimneys  of  Mr.  Barnard's  house,  and  have 
thereby  become  fixed  parts  of  the  house  and 
the  real  estate,  and  could  not  be  removed 
without  great  damage  to  the  house.  I  fail, 
tmder  these  circumstances,  to  see  what  right 
you  acquire  to  remove  them  simply  because 
your  warranty  has  been  proved  and  found  to 
be  false,  and  Mr.  Barnard's  damages  to  be  at 
least  as  great  as  the  balance  claimed  on  your 
:iccount,  so  that  you  were  found  to  have  al- 
ready received  your  full  pay.  I  cannot  com- 
ply with  your  request,  and.  furthermore,  I 
notify  you  that  you  will  be  held  strictly  ac- 
cotmtable  for  all  damages  occasioned  by  any 
attempt  to  remove  them.  Very  resp'y,  M. 
H.  Walker."  Afterwards,  and  on  the  25th 
day  of  June,  IS-SO.  said  Phillips,  on  behalf  of 
plaintiff,  made  demand  upon  defendant  in  the 
following  language:  'You  have  in  your  block 
of  houses  on  the  corner  of  Court  and  Allen 
streets  in  the  city  of  Grand  Rapids,  Michigan, 
three  No.  IS  Aldine  fire-places  or  grates.  The 
Aldine  Manufacturing  Co.,  of  said  city  of 
Grand  Rapids,  is  the  owner  of  said  three 
grates,  and  entitled  to  the  possession  thereof. 
In  behalf  of  said  company  I  hereby  demand 
said  grates,  and  that  said  company  be  allowed 
to  remove  said  grates  from  said  houses.  On 
the  part  of  said  company  I  undertake,  if  this 
demand  be  granted  by  you,  to  remove  said 
grates  in  a  reasonable  and  careful  manner, 
and  at  such  time  as  shall  best  suit  the  con- 
venience of  yourself  and  the  occupants  of 
said  houses,  and  to  remove  said  grates  with- 
out injury  to  the  mantels  or  hearths  or  any 
other  property  of  yourself  or  tenants.'  Said 
demand   was   in   writing,   but  unsigned,   and 


was  read  to,  but  not  left  with,  said  defendant. 
Defendant  refused  to  grant  this  demand,  and 
refused  to  allow  plaintiff  to  remove  said 
grates.  I  further  find  that  prior  to  the  com- 
mencement of  this  suit  defendant  had  con- 
verted said  three  grates— the  property  of  said 
plaintiff — to  his  own  use. 

•'Fourth.  Afterwards  this  suit  was  com- 
menced in  assumpsit  by  plaintiff  before 
Thomas  Walsh,  justice  of  the  peace,  for  the 
value  of  the  grates.  Judgment  was  rendered 
for  plaintiff  for  one  hundred  dollars  damages, 
and  defendant  appealed. 

•'Fifth.  I  find  that  said  three  grates  were 
worth  at  the  time  demand  was  made  as 
aforesaid  the  sum  of  eighty-five  dollars,  and 
that  interest  on  said  sum  to  date  amounts  to 
$2..50. 

"Sixth.  I  further  find  that  the  whole  bill  of 
parcels,  to-wit.  1  No.  22  Aldine  fire-place,  S 
No.  IS  Aldine  fire-places.  4  tile  hearths,  and  4 
mantels,  mentioned  in  plaintiff's  bill  of  paitic- 
iilars  in  said  first  suit,  were  all  included  and 
sold  by  the  terms  of  the  original  contract  of 
sale  for  the  single  price  of  ?200  for  the  whole 
lot,  which  also  included  the  setting  of  the 
same  in  defendant's  block,  and  that  said  set- 
ting was  in  fact  done  by  plaintiff  and  its 
agents  at  its  own  expense.  I  further  find 
that  said  grates  are  so  placed  that  they  can 
be  removed  without  material  injury  to  de- 
fendant's property,  and  that  when  said  grates 
were  placed  in  defendant's  house  they  did 
not  become  fixtures  or  a  part  of  the  real  es- 
tate. 

''Conclusions  of  law.  First.  At  the  ter- 
mination of  the  first  suit  brought  by  plain- 
tiff, against  defendant,  resulting  in  a  judg- 
ment of  no  cause  of  action,  the  title  to  said 
three  Aldine  grates  was  in  plaintiff,  and 
plaintiff  was  entitled  to  possession  of  the 
same. 

"Second.  After  demand  and  refusal  to  de- 
liver up  the  grates,  plaintiff  was  entitled  to 
maintain  this  action  against  defendant  for 
the  value  of  said  grates.  Plaintiff  is  there- 
fore entitled  to  judgment  for  eighty-seven 
and  50-l(X)  dollars,  the  value  of  the  grate.s 
at  the  time  the  demand  was  made,  with  in- 
terest and  cost  of  suit.'' 

Judgment  was  entered  accordingly. 

Exceptions  were  alleged  to  these  findings 
of  fact  and  conclusions  of  law.  It  is  insist- 
ed here  (1)  that  upon  the  facts  found  the 
grates  became  fixtures;  (2)  that  the  evidence 
does  not  sustain  the  findings  that  the  grates 
did  not  become  fixtures;  (3)  that  the  former 
suit  is  a  bar  to  this  action:  (4»  that  under 
the  circumstances  stated  upon  this  record 
plaintiff  could  not  waive  the  tort  and  main- 
tain an  action  of  assumpsit. 

From  a  careful  examination  of  the  record 
we  are  all  agreed  that  the  evidence  sup- 
ports the  finding  that  the  grates  did  not  be- 
come fixtures,  and  the  court  properly  so 
found.  The  grates  were  sold,  with  other 
goods,  as  one  parcel,  and  at  an  agreed  price; 
but  the  grates  were  warranted  to  heat  the 


FIXTURES. 


17 


rooms  for  which  they  were  intended.  The 
defendant  paid  for  all  the  goods  except  the 
grates,  and  refused  to  pay  for  them  because 
they  did  not  fulfill  the  warranty.  After  re- 
ceiving the  goods  he  paid  ."(^lOO,  and,  when 
payment  was  demanded,  he  tendered  to  the 
plaintiff.  .518.02,  balance  unpaid  on  the  goods 
except  the  grates,  for  which  he  I'efused  to 
pay,  and  ordered  the  plaintiff  to  remove 
them.  At  this  time  he  made  no  question  but 
that  the  grates  could  properly  T)e  removed 
and  desired  the  plaintiff  to  do  so,  and  made 
no  claim  that  they  were  fixtures.  The  plain- 
tiff denied  that  any  such  warranty  was 
made,  and  therefore  refused  to  take  the 
grates.  It  is  quite  remarkable  that  during 
the  whole  controversy  arising  out  of  the 
first  suit  the  defendant  nor  his  counsel  made 
any  claim  that  the  grates  could  not  be  re- 
moved without  injury  to  the  building,  but, 
on  the  contrary,  the  defendant  was  de- 
manding that  they  should  be  removed  by 
the  plaintiff.  This  question  was  never  rais- 
ed until  after  the  termination  of  that  suit, 
and  even  when  demand  was  thereafter 
made  the  defendant  made  no  such  claim, 
but  in  reply  to  the  demand  stated  that  he 
would  refer  the  matter  to  his  attorney.  It 
was  then  discovered  by  his  attorney  for  the 
first  time  in  the  history  of  the  case  that 
the  grates  had  become  fixtures,  and  for 
that,  among  other,  reasons  the  plaintiff 
could  not  have  satisfaction  for  the  property 
which  defendant  had  of  the  plaintiff,  and 
for  which  not  one  dollar  had  been  paid. 
Taking  these  facts  into  consideration,  as 
well  as  the  manner  in  which  the  grates  had 
been  put  in,  it  is  quite  evident  that  the  de- 
fendant never  intended  to  retain  them  un- 
til he  was  advised  by  his  counsel  that  plain- 
tiff coidd  not,  as  matter  of  law,  take  them 
out  without  injury  to  the  freehold,  and  that 
plaintiff,  was  barred  from  taking  them  by 
the  result  of  the  former  suit.  It  is  true  that 
there  is  no  universal  test  whereby  the  char- 
acter of  what  is  claimed  to  be  a  fixture  can 
be  determined  in  the  abstract;  that  neither 
the  mode  of  annexation  nor  the  manner  of 
use  is  in  all  cases  conclusive;  yet  these  con- 
siderations are  frequently  of  much  importance 
in  arriving  at  the  intention  of  the  parties. 
which  is  the  real  test.  It  is  now  well  settled 
in  this  state  that  whether  an  article  attached 
to  the  freehold  becomes  a  fixture  depends 
largely  upon  the  intention  of  the  parties. 
Crippen  v.  MoxTison,  13  Mich.  2.3;  Robertson 
V.  Corsett,  31)  Mich.  777;  Wheeler  v.  Bedell, 
40  Mich.  693;  Ferris  v.  Quimby,  41  Mich.  202, 
2  N.  W.  9;  Manwaring  v.  Jenison,  Gl  Mich. 
117,  27  N.  AV.  899;  Stevens  v.  Rose,  ()9  Mich. 
259,  37  N.  W.  205.  Under  the  finding  of  the 
jury  in  the  first  proceeding  the  grates  were 
sold  under  an  express  warranty.  It  was  eon- 
ceded  on  that  trial  that  they  did  not  fulfill  it, 
and  the  defendant  testified  that  he  ordered 
the  plaintiff  to  take  them  out,  Avhich  was  not 
denied.  It  is  therefore  a  legitimate  conclu- 
sion, and  the  only  sensible  conclusion  which 

VAN  ZILE,SEL.CAS.1'ERS. — 2 


can  be  arrived  at  under  the.se  circumstances, 
that  the  sale  was  a  conditional  one,  dependent 
upon  the  fact  whether  the  grates  would  heat 
the  rooms,  which  it  is  conceded  they  would 
not  do.  Thus  it  clearly  appears  that  the  par- 
ties did  not  intend  to  make  them  fixtures, 
and  this,  coupled  with  the  manner  of  their 
being  affixed,  must  settle,  and  did  settle  in 
the  mind  of  the  trial  court,  tlie  fact  that  they 
were  not  fixtures.  We  see  no  error  in  this ' 
finding.  The  court  below  was  equally  right 
upon  the  question  of  the  former  suit  not  be- 
ing a  bar.  The  former  suit  was  in  assump- 
sit for  the  value  of  the  goods  sold,  the  bill 
of  particulars  of  which  is  set  out  in  the  find- 
ings of  the  trial  court.  On  that  trial  the  de- 
fendant testified  that  he  had  paid  in  full  for 
all  the  goods  except  the  grates.  The  con- 
troversy was  thus  narrowed  to  the  right  of 
recovery  for  those.  It  Avas  claimed  on  the 
part  of  the  defendant  that  they  were  pur- 
chased under  a  warranty  that  they  would 
heat  the  rooms.  This  the  plaintiff  denied, 
but  admitted  they  did  not  fulfill  the  warranty 
if  one  was  made.  Upon  this  admission  the 
court  niled  that  the  evidence  should  be  con- 
fined to  the  question  whether  the  warranty 
testified  to  by  defendant  was  in  fact  made, 
and  that  the  defendant,  having  tendered 
$18.02  as  the  amount  admitted  to  be  due. 
he  could  not  recover  any  judgment  for  dam- 
ages against  plaintiff"  under  his  plea  of  i"e- 
coupmeut.  The  cause  was  submitted  to  the 
jury  upon  the  one  question  of  whether  a  war- 
ranty was  in  fact  made,  and  by  their  verdict 
thej^  found  it  was  made,  and  gave  judgment 
of  no  cause  of  action. 

Defendant's  counsel  now  insists  that  this 
action  and  the  proceedings  taken  were  in  af- 
firmance of  the  contract,  and  therefore  all  the 
questions  were  there  settled  which  are  now 
sought  to  be  raised  in  the  present  suit.  It 
appears,  however,  that  on  that  trial  the  de- 
fendant testified  that  he  not  only  tendered  the 
amount  claimed  for  the  balance  of  the  bill 
aside  from  the  grates,  but  had  made  a  de- 
mand upon  the  plaintiff  to  remove  the  grates. 
Defendant  then  gave  no  evidence,  and,  so  far 
as  this  record  shows,  offered  none  to  show 
the  amount  of  his  damages,  if  any  had  been 
sustained;  and  he  appears  to  have  taken  no 
exception  to  the  ruling  of  the  court  that  he 
could  not  recover  judgment  against  the  plain- 
tiff' on  account  of  having  made  the  tender.  It 
is  evident  from  the  record  presented  here  that 
in  the  controversy  in  the  former  suit  the 
whole  case  was  treated  as  a  rescission  of  sale. 
The  plaintiff's  admission  is  evidence  that  he 
so  viewed  the  case,  and  the  court,  from  the 
rulings  made  on  the  trial,  apparently'  regard- 
ed the  case  as  one  of  rescission.  There  is  no 
other  theory  upon  which  the  defendant  had  a 
right  to  defeat  the  plaintift"s  claim  under  the 
admissions  made  and  the  ruling  of  the  trial 
court.  If  the  defendant  claimed  upon  that 
trial  that  he  had  a  right  to  keep  the  grates 
and  recover  his  damages,  then  it  must  be 
presumed  the  trial  com-t  would  not  have  sub- 


18 


CHATTELS  KEAL. 


mitted  the  case  to  the  jury  without  some 
proof  of  damages:  but  none  was  made,  and 
the  trial  court  adjudizt-d  it  not  neoessarj*  to 
the  case  as  presented.  Upon  what  theory- 
could  it  be  said  that  the  damages,  none  hav- 
ini;  been  proved,  amounted  to  exactly  the 
value  of  the  grates?  And  yet.  if  the  theory 
of  defendant's  counsel  is  adopted  here,  we  are 
to  hold  that  the  trial  court  and  the  attorneys 
of  the  parties  so  regarded  it.  and  rhat  the 
plaintiff's  admission  upon  that  trial  amounted 
to  a  concession  that  such  was  the  fact.  We 
cannot  agree  to  such  a  proposition.  The  ad- 
mission of  the  plaintiff  cannot  be  so  enlarged, 
and  if  it  were  so  intended  it  would  be  a  re- 
flection upon  the  judgment  and  intelligence 
of  the  court  and  counsel  trjing  that  case.  If 
the  case  was  tried  upon  the  theory  that  the 
defendant  had  the  right  to  rescind  by  rea- 
son of  the  breach  of  the  warranty,  and  had 
tendered  the  gi-ates  back  to  the  plaintiff  for 
that  reason,  then  the  whole  course  of  the  trial 
and  the  ruling  of  the  trial  court  in  this  case 
are  easily  explainable.  We  are  satisfied  that 
this  was  the  theory  upon  which  the  cause 
was  tried.  That  cause  was  not.  therefore,  a 
bar  to  the  present  action,  as  the  title  to  the 
grates   had   never   passed   to   the   defendant, 


I  and  did   not   pass  by   reason   of  any   action 
I  taken  by  the  plaintiff  upon  the  trial.     It  is 
also  contended  that  the  plaintiff  had  no  right 
I  to   waive  the  tort    and    sue    in    assumpsit. 
:  There  is  nothing  in  this  point.    It  was  per- 
'  sonai  property  in  the  hands  of  the  defend- 
;  ant,  to  which  the  plaintiff  was  lawfully  en- 
<  titled.    He   demanded   it.   and   defendant  re- 
fused to  surrender  the  possession.    The   ac- 
tion was  commenced  in  trover,  and  by  stipu- 
lation of  the  parties  the  form  of  the  action 
was   changed   to  assumpsit.    The  possession 
i  of  the  property  was  obtained  under  contract 
between  the  parties,  and  the  refusal  to  sur- 
(  render  \ipon  demand  amounted  to  a  conver- 
sion for  which  the  tort  could  be  waived  and 
assumpsit   brought.    Turtle   v.    Campbell.    74 
Mich.  (m2.  42  X.  W.  384.    The  action  could 
be  maintained  on  the  common  counts   (Mc- 
Laughlin V.    Salley,   46   Mich.   219,  9   X.   W. 
2.'5Gl.   even  though  the  declaration  does  not 
set  forth  the  waiver  of  the  tort  (McDonald 
V.  McDonald,  G7  Mich.   122,  34  N.  W.  27G>. 
We  find  no  error  in  the  record.    The  judg- 
ment must  be  aflirmed.  with  costs.    The  other 
justices  concurred. 

See  Conrad  v.  Mining  Co.,  54  Mich.  249,  .20 
!  N.  W.  39. 


FIXTURES. 


19 


MANWARING  v.  JENISOX. 
(27  N.  W.  899,  61  Mich.  117.) 
Supreme   Court  of  Michigan.      Ai)ril   29,   18SG. 
Error  to  Kent. 

Godwin  &  Earle,  for  plaintiff.  J.  C.  Fitz 
Gerald,  for  defendant  and  appellant. 

MORSP:,  J.  The  plaintiff  brought  suit 
against  the  defendant,  declaring  in  two 
counts, — one  in  trover  for  the  conversion  of 
two  steam-boilers,  one  smoke-stack,  one 
steam-engine,  one  stave-cutting  machine, 
and  one  machine  for  dressing  artd  circling 
heading,  and  the  other  in  trespass  for  tak- 
ing and  carrying  away  the  same  property. 
The  case  was  tried  before  the  coin-t  without 
a  jury.  The  court  found  the  facts  to  be, 
in  substance,  as  follows: 

(1)  On  the  twenty-eighth  day  of  December, 
1873,  and  for  some  years  prior  thereto,  the 
firm  of  Haven,  McKay  &  Co.  were  the  owners 
of  about  two  acres  of  land  in  the  village  of 
Grandville,  Kent  county,  Michigan,  on 
which  they  had  erected  a  steam  stave  and 
heading  mill,  which  they  had  run  and  oper- 
ated for  some  considerable  time  prior  to 
that  date.  Said  mill  was  always  used  ex- 
clusively in  the  business  of  manufacturing 
staves  and  heading.  The  mill  building, 
when  completed,  cost  about  .$1,500.  It  was 
a  stout  frame,  about  40  by  50  feet  square, 
two  stories  high,  inclosed,  having  a  shingle 
roof,  and  was  built  for  the  express  purpose 
of  being  used  on  said  land  as  a  stave  and 
heading  mill,  and  to  have  placed  therein  all 
the  machinery  hereinafter  referred  to.  The 
building  was  well  adapted  to  this  use.  Aft- 
er the  removal  of  said  machinerj-,  and  at 
the  date  of  removal,  the  building  was  of 
little  value,  not  exceeding  $200.  The  busi- 
ness of  running  the  mill  had  proved  unprof- 
itable, and  had  been  abandoned,  Haven, 
Blake  &  Co.  having  failed  in  business.  The 
Arm  of  Haven,  McKay  &  Co.,  upon  the  com- 
pletion of  said  building,  placed  therein  the 
following  machinery,  all  of  which  was  a 
part  of  the  mill,  and  was  necessary  to  con- 
stitute such  mill,  and  to  furnish  it  with 
steam  power  to  operate,  viz.:  One  steam- 
engine,  weighing  between  five  and  six  tons, 
resting  upon  a  solid  foundation  of  wood, 
brick,  and  stone  laid  in  mortar,  and  was  se- 
curely fastened;  two  steam-boilers,  weigli- 
ing  each  about  five  tons,  each  resting  upon 
a  foundation  laid  in  brick  and  mortar,  and 
both  arched  over  with  brick  laid  in  mortar, 
and  they  could  not  have  been  taken  out 
without  taking  down  some  portion  of  the 
building, — that  is,  without  removing  the  sid- 
ing from  some  portion  of  the  building;  one 
smoke-stack,  connected  and  used  with  said 
boilers;  one  circle  stave-cutting  machine, 
weighing  one  and  one-half  tons;  and  one 
machine  for  dressing  and  circling  heading, 
weighing  about  800  pounds.  Both  these 
machines  were  secui-ely  bolted  down  upon 
the  floor  by  bolts  running  through  the  floor, 


and  through  timbers  below  the  floor,  and 
these  securely  fastened.  The  machines 
were  connected  with  the  main  shaft  by  belts, 
and  were  operated  by  the  power  furnished 
by  the  engine.  All  this  machinerj'  was  well 
adapted  to  the  use  the  firm  was  putting  it 
to.  This  entire  machinery  remained  in  the 
same  position  as  when  first  placed  in  the 
mill  until  its  removal,  in  March,  1880,  as 
hereinafter  stated.  On  the  twenty-eighth 
day  of  Decembei-,  1873,  the  firm  of  Haven, 
Blake  &  Co.,  composed  of  John  V.  D.  Haven, 
.Joseph  Blake,  Levi  Day,  and  Dwight  Ran- 
kin, purchased  of  said  firm  of  Haven,  Mc- 
Kay &  Co.,  and  the  same  was  conveyed  to 
them  by  deed,  as  real  estate,  said  property, 
and  they  immediately  took  possession  of 
the  same,  and  operated  and  ran  said  mill 
until  December,  1877. 

(2)  While  Haven,  Blake  &  Co.  so  owned 
the  property,  and  on  .January  16,  1875,  they 
procured  the  plaintiff  and  one  Hiram  Jeni- 
son  to  indorse  their  note  for  .$3,0O0.  payable 
to  the  order  of  said  William  Manwaring 
and  Hiram  .Jenison.  At  its  maturity  this 
note,  without  going  to  protest,  was  renewed 
by  the  giving  of  a  new  note  signed  by  Man- 
waring  and  Jenison,  payable  to  the  order  of 
Haven,  Blake  &  Co.  This  new  note  was  re- 
newed from  time  to  time  until  December  28, 
1877,  when  Manwaring  was  compelled  to 
and  did  pay  the  sum  of  $1,900  thereon.  At 
the  time  of  the  making  of  the  first  note 
Haven,  Blake  &  Co.  gave  to  said  Manwar- 
ing and  .Jenison  a  chattel  mortgage  to  save 
them  harmless  from  loss  for  indorsing  said 
note.  Said  mortgage  was  filed  in  the  office 
of  the  clerk  of  the  town  of  Wyoming,  Janu- 
ary 15.  1875,  that  being  the  place  of  resi- 
dence of  the  mortgagors,  and  the  property 
being  also  there  situate.  The  chattel  mort- 
gage covered  the  property  in  issue  in  this 
suit,  and  about  3(X)  cords  of  stave  and  head- 
ing botts  lying  in  the  mill-yard.  The  ma- 
chinery is  described  in  the  mortgage  as  be- 
ing "now  in  use  in  this  mill  in  Granville." 

(3)  On  the  thirteenth  day  of  January,  1876, 
said  mortgage  was  renewed  by  the  filing  of 
the  following  affidavit: 

"County  of  Kent,  Township  of  Wyoming— 
ss.:  I,  William  Manwaring,  one  of  the  mort- 
gagees named  in  the  mortgage  given  by 
Haven,  Blake  »fc  Co.  to  Hiram  .Jenison  and 
William  Manwaring.  January  16,  1875,  for 
the  sum  of  three  thousand  dollars,  do  here- 
by certify  that  the  sum  of  twelve  hundred 
and  seventy-five  dollars  is  claimed  by  me 
to  be  due  thereiipon  at  the  date  hereof, 
which  sum  constitutes  the  amount  of  inter- 
est of  Hiram  Jenison  and  William  Manwar- 
ing in  the  property  therein  mentioned  and 
described.     Wm.   Manwaring. 

"Subscribed  and  sworn  to  before  me  this 
thirteenth  January,  1876.  James  A.  Ivnowles, 
Notary  Public,  Kent  Co.,  Mich." 
— And  also  renewed  again  February  21, 
1877,  by  the  filing  of  the  affidavit  given  be- 
low, as  follows: 


20 


CHATTELS  REAL. 


"State  of  Michigan.  County  of  Kent— ss.: 
Wm.  ^Linwariug.  the  within  luorrgatree.  be- 
in?  duly  sworn,  says  that  there  is  now  due 
and  unpaid  on  the  said  mortgajre  hereunto 
annexed  the  sum  of  two  thousand  dollars 
by  virtue  of  said  mortfrage,  and  therein 
mentioned.     Wm.    Mauwaring. 

"Sworn  to  and  subscribed  before  me  this 
tifteenth  day  of  February.  1S77.  Wm.  H. 
Galloway.   Justice  of   the  Peace." 

(4i  The  mill  was  closed  up  and  stopped 
running,  and  the  company  became  insolvent. 
The  property  in  question  remained  in  the 
mill,  and  on  the  thirtieth  day  of  July.  1S77, 
Manwaring  procured  a  constable  to  adver- 
tise and  sell  the  same;  and  on  July  30, 
1877.  said  constable  postetl  his  notice  of  sale, 
of  which  the  following  is  a  copy,  which  was 
the  only  notice  given  of  said  sale,  to-wit: 

"Chattel  Mortgage  Sale.  By  virtue  of  a 
chattel  mortgage  now  in  my  hands,  I  shall 
sell  to  the  highest  bidder,  at  the  stave-mill, 
in  the  village  of  Grandville.  Kent  Co..  state 
of  Michigan,  on  the  eleventh  day  of  August. 
1S77.  at  one  o'clock  p.  m.,  all  the  personal 
property  herein  described:  Two  steam-boil- 
er.s.  one  smoke-stack,  one  engine,  one  stave- 
cutting  macliine,  and  one  machine  for  dress- 
ing and  circling  heading,  and  ."50,000  staA-es, 
more  or  less.  James  Jewell,  Constable. 
July  80,  1877." 

At  the  time  and  place  named  said  Jewell 
appeared  and  sold  the  property  at  auction, 
pursuant  to  the  terms  of  the  chattel  mortgage 
to  William  Manwaring,  he  being  the  highest 
bidder  therefor.  The  property  was  bid  in  at 
the  sum  of  ?L'74.90,  and  Manwaring  received 
a  memorandum  of  his  purchase  from  Jew- 
ell. Previous  to  the  sale  the  said  Jewell 
seized  the  property  under  the  chattel  mort- 
gage by  going  into  the  mill,  July  30.  1877. 
and  announcing  that  he  seized  the  property 
under  the  mortgage  aforesaid.  At  the  time 
of  the  sale  the  property  was  in  view  of  the 
officer,  but  no  part  of  it  was  detached  from 
the  mill,  and  the  plaintiff  did  not  then,  nor 
at  any  other  time,  a+tempt  to  detach  or  re- 
move said  property  from  the  mill,  or  any 
part  of  it,  and  did  not  exercise,  or  attempt 
to  exercise,  any  control  over  it,  excepting 
that  after  his  purchase  he  claimed  to  own 
the  property    and  offered  it  for  sale. 

("))  In  the  month  of  >[arch.  18S0.  the  de- 
fendant sold  the  property  in  question,  which 
was  still  attached  to  the  mill,  for  the  sum 
of  .$1,400  to  one  Adolph  Leitelt.  which  sum 
was  paid  by  said  Leitelt  to  defendant,  the 
said  property  being  then  worth  .$1.4(V>.  Said 
Leitelt  removed  the  property  to  Grand  Rap- 
ids, and  used  it  in  hi.s  business.  Nothing 
was  done  with  it  by  defendant,  except  to 
sell  it  to  Leitelt.  Plaintiff  never  demanded 
it  of  defendant,  nor  in  any  manner  attempt- 
ed to  get  possession  of  it. 

(0)  The  title  to  the  property  in  question 
claimed  by  Luman  Jenison  at  the  time  of 
his  said  sale  was  this,  to-wit:  The  firm  of 
L.   &  L.   Jenison,   composed   of  Luman   and 


Lucius  Jenison,  were  creditors  of  Haven, 
Blake  &  Co.  for  goods  and  supplies  furnish- 
ed to  said  firm  of  Haven.  Blake  &  Co.  by 
said  L.  &  L.  Jeni-son.  commencing  on  the 
twenty-ninth  day  of  December,  1873,  and 
continuing  along  from  time  to  time  up  to 
the  first  day  of  October,  1875,  at  which  time 
the  amount  of  such  indebtedness  was  over 
$1,700. 

On  the  twelfth  day  of  June,  1876,  the  said 
firm  of  L.  &:  L.  Jeni.son  commenced  a  suit 
against  the  said  firm  of  Haven.  Blake  & 
Co..  by  attachment,  to  collect  said  indebted- 
ness, and  on  the  date  of  the  issuing  of  said 
writ  the  same  was  duly  levied  upon  the 
two  acres  of  land  aforesaid  upon  which 
this  mill  was  situated,  and  of  which  this 
machinery  was  a  part.  This  suit  was  duly 
prosecuted  to  effect,  and  on  the  fourth  day 
of  November.  1876,  a  judgment  was  duly 
rendered  in  favor  of  the  plaintiffs  and 
against  the  defendant  for  the  sum  of  $1.- 
703.17,  damages  and  costs  to  be  taxed.  Exe- 
cution was  duly  issued  on  this  judgment 
November  4,  1876,  and  was  duly  levied  upon 
said  property  on  the  eighteenth  day  of  No- 
vember. 1876;  and  the  said  property  was 
duly  advertised  and  sold  by  the  said  sheriff 
as  real  estate,  by  virtue  of  said  writ,  on  the 
twenty-eighth  day  of  May,  1877,  to  the  plain- 
tiff in  said  writ,  for  the  sum  of  $900.  the 
sheriff  giving  and  causing  to  be  filed  the 
proper  certificate  of  such  sale;  and  subse- 
quently, and  on  the  nineteenth  day  of  Sep- 
tember. 1878,  the  property  not  being  re- 
deemed, he  executed  and  delivered  to  said 
purchaser  a  deed  of  said  property  in  pur- 
suance of  such  sale.  At  this  sale  Manwar- 
ing was  present,  and  gave  notice  of  his 
claim  to  the  property  in  question,  and  the 
Jenisons,  Avhen  they  bought,  knew  of  his 
claim.  The  defendants  in  said  execution 
were  the  owners  of  said  property  at  the 
time  of  the  levy  of  the  attachment,  as  well 
as  at  the  levy  of  the  execution  aforesaid, 
and,  from  the  time  they  purchased  the  same 
as  aforesaid,  they  never  sold  or  incuml>ered 
it  in  any  manner,  except  by  the  chattel 
mortgage  aforesaid. 

(7)  The  plaintiff  never  had  any  lien  on  the 
property  in  question  in  this  suit,  or  title  there- 
to, except  such  lien  as  he  acquired  by  virtue 
of  the  chattel  mortgage  aforesaid,  and  such 
title  as  he  acquired  by  virtue  of  the  sale  un- 
der the  notice,  and  by  said  Jewell,  as  afore- 
said. 

The  circuit  judge  further  found,  as  a  mat- 
ter of  law,  from  the  facts  above  stated,  that 
the  plaintiff  was  the  owner  of  the  propertj'  at 
the  tinie  of  the  sale  and  conversion  of  the 
same  by  the  defendant,  and  that  it  was  worth 
$1,400;  and  rendered  judgment  for  the  plain- 
tiff in  the  sum  of  $1.81.").42. 

The  defendant  alleges  that  the  facts  found 
do  not  support  the  judgment,  and  brings  en-or. 

It  is  claimed  that  the  plaintiff  acquired  no 
propert)-  in  the  goods  and  chattels  in  ques- 
tion   here    for   several    reasons:     First.  That 


F.XTUiiES. 


21 


the  machinery  in  issue  in  this  suit  was  real 
estate,  and  therefore  not  subject  to  chattel 
mortgage.  Second.  The  first  renewal  of  the 
mortgage  was  not  in  sufficient  compliance 
with  the  statute,  in  that  it  does  not  state  any 
amount  as  being  owing  or  unpaid  upon  it 
The  second  renewal  was  not  in  time,  not  Ijeing 
filed  until  February  21,  1877.  How.  Ann.  St. 
§  6106.  Third.  The  mortgage  being  given  as 
an  indemnity  against  loss  upon  the  note  in- 
dorsed by  plaintiff  and  Hiram  .Jenison,  and 
that  note  not  being  protested,  but  a  new  note 
given  by  the  indorsers  as  maimers  in  its  stead, 
the  lien  of  the  mortgage  was  lost.  Bj^  the 
note  not  being  protested,  Mauwaring  and  Jen- 
ison were  discharged  from  all  liability  there- 
on; and  the  paying  of  the  new  note  by  plain- 
tiff would  not  come  under  the  terms  of  the 
mortgage.  Fourth.  The  power  of  sale  in  the 
mortgage  was  to  the  mortgagees  jointly,  and 
not  severally.  Manwaring  alone  could  not 
execute  the  power.  Fifth.  The  sale  was  void 
because  the  notice  thereof  was  insufficient  in 
several  particulars,  to-wit:  (a)  It  does  not 
pretend  to  be  by  virtue  of  the  mortgage;  (b) 
it  does  not  give  the  name  of  mortgagors  or 
mortgagees,  the  date,  or  any  other  means  by 
which  the  mortgage  could  be  identified  or 
found;  (c)  it  does  not  claim  to  be  done  bs'  or- 
der from  or  under  any  authority  of  the  mort- 
gagees, or  either  of  them.  Sixth.  Manwaring 
could  not  purchase  at  the  sale,  being  only  one 
of  the  mortgagees.  Seventh.  If  the  plaintiff 
claims  the  property  as  mortgagee  instead  of 
purchaser,  then  he  cannot  recover  without 
joining  the  other  mortgagee,  Hiram  Jenison. 
Eighth.  There  should  have  been  a  demand  for 
the  property  before  suit. 

There  is  no  question  as  to  the  validity'  of  the 
attachment  proceedings,  and  the  title  of  the 
defendant  is  undisputed,  save  by  the  claim 
of  the  plaintiff  under  this  chattel  mortgage, 
and  the  sale  by  virtue  of  the  power  of  sale 
contained  therein. 

The  first  question  involved  is  the  character 
of  the  property  in  issue.  The  defendant 
claims  that,  at  the  time  the  cliattel  mortgage 
was  given,  this  macliinery  was  a  part  of  tlie 
realtj-,  and  not  subject  to  its  lien,  and  that  it 
remained  a  part  of  the  realty  until  its  sever- 
ance by  Leitelt,  and  that  the  sale  of  the  real 
estate,  under  the  execution  in  the  attachment 
proceedings,  carried  the  title  of  this  property 
to  the  defendant  as  purchaser  at  such  execu- 
tion sale.  There  are  many  conflicting  deci- 
sions in  the  boolis  as  to  the  dividing  line  be- 
tween realty  and  personalty  in  cases  where 
machinery  ha?  been  affixed  to  mills  and  oth- 
er buildings  for  use  therein.  A  large  number 
of  cases  hold  that,  if  the  article  is  attached 
for  temporary  use,  with  tlie  intention  of  re- 
moving it,  it  does  not  lose  its  character  as  per- 
sonalty'; but  if  it  is  placed  there  for  perma- 
nent improvement  of  the  freehold,  it  becomes 
a  part  of  the  realty.  Hellawell  v.  Eastwood, 
6  Exch.  295,  312;  Lancaster  v.  Eve,  M  E.  C. 
L.  717;  Crane  v.  Brigham.  11  N.  J.  Eq.  29; 
Walmsley  v.  Milne,  97  E.  C.  L.   114;    Walk- 


er V.  Sherman.  20  Wend.  G3G;  Potter  v. 
Cromwell,  40  N.  Y.  287.  But  most  of  the 
American  authorities  agree  that  the  question 
of  the  intention  of  the  party  or  parties  affixing 
the  machinery  enters  into'  the  elements  ol 
each  case.  The  permanency  of  the  attach- 
ment, and  its  character  in  law,  does  not  de- 
pend so  much  upon  the  degree  of  physical 
force  with  which  the  thing  is  attached,  or  the 
manner  and  means  of  its  attachment,  as  up- 
on the  motives  and  intention  of  the  party  in 
attaching  it.  If  the  intention  is  that  the  ar- 
ticles attached  sliall  not  by  annexation  be- 
come a  part  of  the  freehold,  as  a  general  rule 
they  will  not.  The  exception  is  where  the 
subject  or  mode  of  annexation  is  such  as  that 
the  attributes  of  personal  property-  cannot  be 
predicated  of  the  thing  in  controversy  (Ford 
V.  Cobb,  20  N.  Y.  344).  as  when  the  prop- 
erty cannot  be  removed  without  practically  de- 
stroying it,  or  when  it,  or  part  of  it,  is  essen- 
tial to  the  support  of  that  to  which  it  is  at- 
tached (Tifft  V.  Horton,  53  N.  Y.  377;  Voor- 
hees  V.  McGinnis,  48  N.  Y.  278;  Winslow 
V.  Insm-ance  Co.,  4  Mete.  [Mass.]  306;  Crane 
V.  Brigham,  11  X.  J.  Eq.  29-35;  McRea  v. 
Bank,  GG  N.  Y.  489;  Sisson  v.  Hilibard,  75  X. 
Y.  .542;  Eaves  v.  Estes,  10  Kan.  314;  T"^-ull 
V.  Fuller,  28  Me.  548;  Ballon  v.  Jones.  37 
111.  95;  Wade  v.  Johnston,  25  Ga.  ?^M;  Teaft" 
V.  Hewitt,  1  Ohio  St.  511,  530;  Hill  v.  Went- 
worth,  28  Yt.  428,  436). 

In  our  own  state  it  has  been  repeatedly  held 
that  the  most  important  test  in  determining 
the  character  of  the  machinery  affixed  to  a 
building  is  the  intent  of  the  parties  making 
the  annexation.  Coleman  v.  Manufacturing 
Co.,  38  Mich.  40;  Crippen  v.  iSIorrisou,  13 
Mich.  23;  Adams  v.  Lee,  31  Mich.  440;  Mc- 
Auliffe»v.  Mann,  37  Mich.  539;  Jones  v.  De- 
troit Chair  Co.,  38  Mich.  92;  Robertson  v. 
Corsett,  39  INIich.  777;  IngersoU  v.  Barnes.  47 
:\Iich.  104,  10  X.  W.  127;  Ferris  v.  Quimby, 
41  Mich.  202.  2  X.  W.  9.  The  nUe  is  con- 
cisely laid  down  in  these  words  by  Chief  Jus- 
tice Campbell  m  Wheeler  v.  Bedell,  40  Mich. 
690:  "There  is  no  miiversal  test  whereby 
the  character  of  wliat  is  claimed  to  be  a  fix- 
ture can  be  determined  in  the  abstract.  Xei- 
ther  the  mode  of  an^>exation,  nor  the  manner 
of  use,  is  in  all  cases  conclusive.  It  must 
usually  depend  on  the  express  or  implied  un- 
derstanding of  the  parties  concerned."  The 
case  of  Wlieeler  v.  Bedell  was  a  contest  be- 
tween the  holder  of  a  real-estate  mortgage  up- 
on the  land,  which  mortgage  contained  no  ref- 
erence to  the  planing-machine,  and  the  hold- 
er of  a  chattel  mortgage  upon  the  planer,  as 
to  the  title  of  it.  The  planing-machine  was 
in  the  building  when  the  real-estate  mortgage 
was  given,  and  weighed  about  three  tons,  and 
was  fastened  *^o  the  floor  at  each  end  with 
cleats  and  two  bolts,  fi-om  a  part  called  the 
hanger,  through  the  floor,  aud  was  fastened  to 
sticks  under  tlie  joists,  with  nuts  and  screws. 
It  was  connected  with  the  line  shaft  by  belts. 
The  chattel  mortgage  was  given  after  the 
real-estate   mortgage,   and   with   notice   of   it. 


CHATTELS  REAL 


The  title  was  found  to  be  in  the  holder  of  the 
chattel  moitj:aj;e. 

In  the  case  before  us,  the  intention  of  Ha- 
ven, Blalie  &  Co.,  who  put  this  machinery  in 
the  mill,  is  gathered  only  from  the  mode  of 
annexation  and  manner  of  use  of  the  machin- 
ery, and  the  subsequent  acts  of  Haven,  Blake 
&  Co.,  who  were  their  successors.  The  ma- 
chinery, save  the  engine  and  boilers,  were 
fastened  to  the  buildinj;-  nearly  identical  with 
the  i)lauiug-ma chine  in  Wheeler  v.  Bedell. 
Haven,  Blake  &  Co.  no  doubt  treated  it  all  as 
persouiUty.  and  such  was  the  understanding 
evidently  between  them  and  the  plaintiff. 
They  were  then  tl-ie  owners  of  tlie  real  estate, 
and  could  have  secured  him  upon  the  land  if 
the  intention  had  not  been  to  treat  the  ma- 
chinery as  personal  chattels  that  could  be  re- 
moved at  any  time.  There  was  nothing  about 
this  machinerj-  that  prevented  its  removal 
and  use  away  from  the  building.  The  fact 
that  the  building  was  of  but  little  value  with- 
out the  machineiy  cuts  no  particular  figure 
in  the  case,  if  the  intention  of  the  parties  is 
to  control,  nor  that  the  building  was  used  for 
no  other  purpose  than  that  of  a  stave  and 
heading  factory.  Sisson  v.  Hibbard,  75  N. 
Y.  542.  And  the  further  fact  that  the  en- 
gine and  boiler  could  not  be  removed  without 
removing  the  siding  from  some  portion  of  the 
building  is  not  controlling,  and  cannot  affect 
the  plaintiff's  rights.  The  removal  did  not 
take  away  or  remove  tliat  which  was  essential 
to  rhe  support  of  tlie  building;  neither  did  it 
destroy  or  injure  the  chattels  themselves;  nor 
was  the  injury  to  the  walls  or  sides  of  the 
building  shown  to  be  great  either  in  extent  or 
amount.  That  tliey  were  susceptible  of  re- 
moval, and  of  use  elsewhere,  is  shown  by  the 
findings,  and  defendant's  own  sale  of  them  to 
Leitelt.  Tlfft  v.  Horton.  53  X.  Y.  384:  Sis- 
son  V.  Hibbard,  75  N.  Y.  544,  545;  Crippen 
V.  Morrison,  13  Mich.  31,  32. 

The  finding  that  tliis  machinery  was  bene- 
ficial and  necessary  to  the  use  of  the  mill 
does  not  of  necessity  stamp  it  as  i*ealty. 
Mills  and  factories  are  generally  set  up  as 
entireties  for  the  purpose  of  manufacturing; 
but,  according  to  the  current  of  modern  deci- 
sions, as  shown  in  Crippen  v.  Moi'rison,  the 
ultimate  purpose  is  disregarded,  and  the  ma- 
chinery therein,  including  even  the  engine  and 
boilers,  may  be  treated  and  regarded  as  chat- 
tels, especiall.v  where  such  is  the  intent  of 
the  parties  interested;  and  if  the  articles  are 
not  expressly  made  for  use  in  the  particular 
mill,  and  not  elsewhere,  and  equally  capable 
of  beneficial  use,  on  being  removed  and  set 
np,  in  some  other  building,  they  may  be  ei- 
ther real  or  personal  property,  according  to 
the  intent  of  tlie  parties  in  each  particular 
case.     Robertson  v.  Cor.sett,  39  Mich.  783. 

The  cases  relied  upon  as  supporting  a  con- 
trary doctrine  in  this  state  by  the  defendant's 
counsel  are  Lyle  v.  Palmer,  42  Mich.  316,  3 
N.  W.  922,  and  Morrison  v.  Beriy,  42  Mich. 
389,  4  N.  W.  731.  In  the  case  of  Lyle  v. 
Palmer   the   machinery   in  qftestion    was   de- 


scribed in  and  covered  by  the  real-estate  mort- 
gage, though  it  is  stated  that  the  parties  sup- 
posed it  to  be  personal.  It  was  decided  that 
Palmer,  the  trustee  in  bankruptcy  of  the  mort- 
gagors, could  not  hold  the  machinery,  even  if 
it  was  considered  to  be  personalty;  but  Jus- 
tice Cooley  in  liis  opinion  remarks  that  the 
machinery  was  specially  adapted  for  "use  in 
connection  with  the  real  estate;  it  was  put 
up  for  use.  and  actually  used  with  it,  and 
was  not  severed  from  the  rciilty  in  owner- 
ship;" and  therefore  concludes  that  the  par- 
ties were  mistaken  in  supposing  it  to  be  per- 
sonal property.  But  in  a  dissenting  opinion 
in  Morrison  v.  Berry,  the  same  justice,  on 
page  397,  42  Mich.,  and  page  734,  4  N.  W. 
731.  in  discussing  that  case,  says  "that  the 
question  of  fixture  or  no  fixture  depends  upon 
the  intention  of  th(!  parties,"  and  quotes  ap- 
provingly the  language  of  Chief  Justice  Camp- 
bell in  Wheeler  v.  Bedell.  The  controlling 
opinion  in  Morrison  v.  Berry  was  placed  upon 
the  ground  that  the  intention  of  both  parties 
was  explicit  that  the  articles  were  to  become 
a  part  of  the  freehold,  and  therefore  does  not 
aid  the  defendant's  case  here;  and  Justice 
Cooley  dissented  for  the  reason  that  the  per- 
mission of  the  plaintiffs,  the  Berry  Bros.,  that 
the  things  annexed  should  become  a  part  of 
the  freehold,  was  obtained  by  fraud,  and  that 
they  had  a  right  to  withdi'aw  their  consent 
when  the  fraud  was  discovered  and  claim  the 
property  as  personalty-,  the  same  as  if  no  con- 
sent had  ever  been  given. 

In  the  case  at  bar  there  is  no  finding  that 
this  machinery  was  specially  adapted  or  built 
for  this  particular  building,  but  that  it  "was 
well  adapted  to  the  use  the  firm  was  putting 
it  to"  in  the  mill.  It  was  just  as  well  adapt- 
ed for  use  in  any  other  mill  for  the  same  pur- 
poses. When  we  take  into  consideration  the 
large  number  of  mills  temporarily  erected  all 
over  the  country  for  the  manufacture  of 
staves,  heading,  and  other  articles,  while  the 
timber  may  last  in  a  particular  section,  and 
then  the  machineiy  to  be  removed  elsewhere 
to  be  put  in  another  temporaiy  structure  for 
like  uses;  and  the  fact  that  this  class  of  ma- 
chinery is  manufactured  for  sale  and  use, 
without  reference  to  any  particular  building, 
and  to  be  employed  in  various  mills  until 
worn  out  or  destroyed, — it  would  not  be  in 
harmony  with  the  general  method  of  doing 
business,  nor  desirable,  to  make  any  or  all 
of  the  characteristics  of  tlie  annexation  or  use 
of  this  macliinerj-  in  this  mill  the  guide  in  de- 
termining whetlier  it  should  be  considered  real 
or  personal  property,  regardless  of  the  inten- 
tion of  the  parties,  nor  do  I  think  there  is  any 
fixed  or  conti'olling  rule  of  law  requiring 
such  holding. 

The  finding  in  regard  to  the  value  of  the 
building  without  the  machinery  seems  to  be 
somewhat  conflicting.  It  is  stated,  in  one 
part  of  the  finding,  that  the  mill  building, 
when  completed,  cost  about  $1,500,  and  in  an- 
other that,  at  the  date  of  the  removal  of  the 
machinery,  it  was  of  little  value,  not  exceed- 


FIXTURES. 


2:3 


ing:  $200.  It  was  probably  never  worth  the 
ilem  of  its  cost.  It  was  no  doubt  built  for 
the  purpose  of  covering  the  machinery,  and 
supporting  it  in  position  while  in  use.  It 
might  well  be  said,  under  the  findings  in  this 
case,  that  the  building  itself  was  not  placed 
upon  the  premises  for  the  permanent  improve- 
ment of  the  freehold,  but  for  temporary  use 
with  the  machinei-y  while  there  was  timber 
to  be  obtained  in  the  vicinity  for  staves  and 
heading.  Such  buildings  or  mills  are  not  gen- 
erally designed  to  be  permanent  as  are  grist- 
mills and  other  manufacturing  establishments 
that  do  not  depend  in  their  use  upon  the  quan- 
tity of  material  for  manufacture  within  easy 
reach,  but  which  can  be  operated,  if  desired, 
as  long  as  the  community  where  they  are 
located  may  exist.  The  purchaser  under  the 
execution  sale  did  not  intend  to  carry  on  a 
business  in  this  mill,  which  had  become  un- 
profitable, and  been  abandoned  by  Haven, 
Blake  &  Co.,  presumably  because  its  use  had 
been  unprofitable  on  account  of  the  scarcity  of 
material  in  the  neighborhood.  The  defend- 
ant saw  no  value  in  this  mill  and  machinery 
as  real  estate,  but  sold  the  articles  in  ques- 
tion here  as  personal  property  to  one  wish- 
ing and  intending  to  use  them  elsewhere. 
When  Haven.  Blake  &  Co.  mortgaged  the 
property  to  Manwaring  and  Jenison,  they 
could  have  made  it  personalty  by  the  mere 
severance  of  it  from  the  building.  I  think, 
when  they  so  moi'tgaged  this  machinery,  no 
other  person's  rights  then  intervening  or  be- 
ing affected  by  it,  it  was  in  law  such  a  sever- 
ance as  would  make  the  articles,  between 
them  and  the  mortgagees,  personal  property. 
I  do  not  suppose  that  it  will  be  claimed  that, 
in  a  controversy  between  the  mortgagees  and 
Haven,  Blake  &  Co.,  the  latter  could  dispute 
the  lien  of  the  mortgage  upon  the  ground  that 
the  articles  were  not  chattels,  but  part  of  the 
real  estate.  Corcoran  v.  Webster,  ijO  Wis. 
lL>.-i,  G  N.  W.  513. 

The  purchaser  under  the  execution  sale 
does  not  stand  in  the  relation  of  a  bona  fide 
purchaser  of  the  land  without  notice  of  the 
rights  of  the  plain1:iff.  He  only  took,  by  his 
levy,  the  same  title  his  judgment  debtors 
had.  It  gave  him  a  lien  upon  all  the  right, 
title,  and  interest  of  Haven,  Blake  &  Co.,  but 
upon  no  better  title.  The  question  of  good 
faith  as  purchaser  at  the  execution  sale  does 
not  arise,  as  there  can  be  no  claim  of  estoppel 
against  either  Haven,  Blake  &  Co.  or  the 
plaintiff.  At  the  time  of  sale  he  was  notified 
and  knew  of  plaintiff's  claim,  and  he  acquired 
no  new  equities  thereby.  French  v.  De  Bow, 
■AH  Mich.  708;  Michigan  Paneling  M.  &  M. 
Co.  V.  Parsell,  Id.  47.5;    Bank  v.   McAllister, 

46  Mich.  398,  9  N.  W.  446;   Drake  v.  [McLean, 

47  Mich.  102,  10  N.  W.  126;  Sisson  v.  Hib- 
bard.  7-5  N.  Y.  546. 

It  must  be  conceded  that  in  this  state,  as 
well  as  others,  under  many  decisions,  that  if 
the  mortgage  in  this  case  had  been  given  be- 
fore these  articles  were  put  in  the  mill,  their 
attachment,  as  they  were  affixed,  would  not 


have  changed  their  character  as  chattels. 
Crippen  v.  Morrison,  13  Mich.  23;  Ingersoll 
V.  Barnes,  47  Mich.  104,  10  N.  W.  127;  Tifft 
V.  Horton,  53  N.  Y.  377;  Voorhees  v.  McGin- 
nis,  48  N.  Y.  278;  Sisson  v.  Hibbard,  75  N. 
Y.  542.  Therefore  I  see  no  reason  why  the 
annexation  of  these  articles  to  this  building, 
before  the  mortgage  was  executed,  should 
prevent  their  being  treated  as  personalty, 
when  it  is  manifest  that  it  is  the  intent  of  the 
parties,  and  not  the  annexation,  that  controls 
and  fixes  their  status.  As  shown  in  Crippen 
V.  Morrison,  the  placing  of  a  chattel  upon  the 
soil,  or  by  fixture  to  a  building  upon  the  Boil, 
never  by  necessity  makes  it  a  i^art  of  the 
realty  where  the  chattel  is  yet  separable,  and 
capable  of  being  removed  by  the  owner.  The 
cases  cited  by  defendant's  counsel  from  Mass- 
achusetts hold  a  different  doctrine,  for  the 
reason  "that  the  intention  of  the  parties  to 
change  it  to  personal  property  is  one  which 
the  law  will  not  carry  into  effect."  Richard- 
son V.  Copelaud,  G  Gray,  .538;  Gibbs  v.  Estey, 
15  Gray,  589;  Pierce  v.  George,  108  Mass.  82. 
This,  however,  is  not  the  law  in  this  state. 

The  first  renewal  of  the  mortgage  was  suffi- 
cient. It  sets  forth  that  $1,275  "constitutes 
the  amount  of  interest  of  Hiram  Jenison  and 
William  Manwaring  in  the  property  therein 
mentioned  and  described."  It  is  in  compli- 
ance with  the  statute.  How.  Ann.  St.  §  6196. 
The  second  affidavit  was  not  filed  in  time,  but 
was  sufficient  in  form.  The  attachment  levy 
under  which  the  defendant  claims  was  made 
June  12,  1876,  and  judgment  obtained  Novem- 
ber 4,  1876.  The  levy,  by  execution  upon 
this  judgment,  was  made  November  IS,  1876, 
and  sale  under  such  levj'  took  place  May  28, 
1877,  at  which  sale  the  plaintiff  was  present, 
and  gave  notice  to  the  builders  of  his  claim 
under  the  mortgage.  It  will  be  seen  that  the 
mortgage  was  in  force  by  virtue  of  the  first 
renewal,  when  both  the  attachment  and  ex- 
ecution levies  were  made;  and,  when  the  sale 
was  made,  the  second  renewal  had  been  in 
force  under  the  exception  to  the  statute  for 
over  three  months.  The  exception  to  the  stat- 
ute reads  as  follows:  "Provided  that,  such 
affidavit  being  made  and  filed  before  any  pur- 
chase of  such  mortgaged  property  shall  be 
made,  or  other  mortgage  receiveti,  or  lien  ob- 
tained thereon  in  good  faith,  shall  be  as  valid 
to  continue  in  effect  stich  mortgage  as  if  the 
same  were  made  and  filed  within  the  period 
as  above  provided."  How.  Ann.  St.  §§  611M5, 
6197. 

When  the  defendant  acquired  his  attach- 
ment and  execution  lien,  the  mortgage  was 
valid,  and  he  had  constrtictive  notice  of  plain- 
tiff's rights  tmder  tlie  same;  and  also,  wlien 
he  ptircliased,  he  had  both  actual  and  con- 
structive notice.  He  must  take  his  lien  as  it 
stood  when  he  acquired  it.  He  did  not  gain 
any  element  of  good  faith  by  the  simple  omis- 
sion of  plaintiff"  to  file  his  affidavit  in  time. 
If  the  renewal  had  not  been  made  before  the 
sale,  a  different  question  might  have  arisen, 
but  it  is  not  necessary  to  discuss  it  here.    The 


24 


CHATTELS  IJEAL. 


defendant  obtained  his  lien  and  made  the  pur-  j 
chase  at  the  sale  while  the  mortgage  was  in 
force  under  the  statute,  and  must  bo  held  as 
concluded  tliercby.  The  debt  upon  which  he 
obtained  judgment  was  not  incurred  during 
tlie  month  this  mortgage^  was  not  renewed. 
Indeed,  Ins  claim  was  adjudicated  and  tixed 
by  judgment  while  the  mortgage  was  in  force 
under  the  first  renewal,  which  was  in  time 
and  valid. 

When  the  note  upon  which  Manwariug  and 
Jenison  were  indorsers  became  due,  it  was 
not  necessary  that  they  should  wait  for  the 
protest  of  the  note  in  order  to  keep  their  in- 
dt'mnity  mortgage  alive.  They  had  a  right  to 
pay  the  note  by  giving  their  own,  as  they  did, 
and  hold  their  security,  as  they  did;  and  if, 
instead  of  renewing  the  old  note,  they  saw 
lit  to  change  the  character  of  their  liability 
to  the  holder  of  the  paper,  with  the  consent 
of  Haven.  Blake  &  Co.,  no  one  else  hjis  any 
reason  to  complain. 

It  is  claimed  that  Hiram  Jenison  had  noth- 
ing to  do  with  the  sale,  and  that  it  was  di- 
rected by  Manwaring  alone,  who  had  no  right, 
under  the  power  of  sale  in  the  mortgage,  to  do 
so.  The  record  does  not  show  but  that  Jeni- 
fon  acquiesced  in  all  that  Manwaring  did. 
The  finding  is  simply  that  Manwaring  pro- 
cured the  constable  to  advertise  and  sell  the 
same.  In  the  absence  of  any  proof  to  the 
contrary,  it  would  be  presumed,  we  think,  the 
advertisement  and  sale  w:is  made  with  Jeni- 
son's  consent.  At  least,  he  does  not  complain 
of  it.  There  is  no  doubt  but  Manwaring  had 
a  right  to  purchase  the  property  at  the  sale. 
It  was  not  necessary  that  he  and  Jenison 
should  both  be  present  and  bid  together,  or 
that  he  should  piu'chase  the  property  in  the 
names  of  both.  There  is  no  warrant  in  the 
statute  for  any  such  idea.  How.  Ann.  St.  § 
G200. 

The  only  remaining  objection  necessary  to 
notice  is  the  one  that  the  notice  of  sale  was 
insufiicient.  The  notice  does  not  give  the 
date  of  the  mortgage,  or  its  amount,  or  the 
names  of  either  mortgagors  or  mortgagees, 
but  describes  the  property,  and  there  is  no 
complaint  that  the  notices,  such  as  they  were, 
were  not  sufficiently  and  properly  posted  as 
to  time  or  places  of  posting.  It  does  not  ap- 
pear that  any  one  was  misled  by  this  notice. 
There  was  but  one  mortgage  upon  the  prop- 
erty, and  that  was  on  file  in  the  proper  office. 
Any  one  seeing  the  notice,  and  wishing  to  bid 
upon  the  property,  could  easily  inform  him- 
self as  to  the  identity  of  the  mortgage.  Wasi 
the  sale  void  because  of  the  failin-e  in  the 
notice  to  describe  the  mortgage  more  accu- 
rately, and  tlie  omission  therefrom  of  the 
names  of  the  mortgagors  and  mortgagees? 
We  think  not.  The  power  of  sjile,  in  default 
of  the  payment  by  Haven,  Blake  &  Co.  of 
the  note  indorsed  by  Manwaring  and  Jenison, 
authoriz(>d  the  mortgagees  "to  sell  at  public 
auction,  after  the  like  notice  as  is  required  by 
law  for  constables'  sales,  the  goods,  chattels, 
and  personal  property"  described  in  the  mort- 
gage.    The  statute  governing  constables'  sales 


on  execution,  in  force  at  the  time  of  the  sale 
in  question  here,  and  in  relation  to  the  notice 
thereof,  provided  that  the  constable  should 
"give  public  notice,  by  advertisement  signed 
by  himself,  itnd  put  up  at  three  public  places 
in  the  city  or  township  where  the  goods  and 
chattels  shall  be  taken,  when  and  where  they 
wiU  be  exposed  for  sale."  Comp.  Laws  1871, 
g  5414.  The  notice  was  required  to  be  put  up 
at  least  five  days  before  the  time  appointed 
for  the  sale.  Comp.  Laws  1871,  §  5415.  Un- 
der this  statute  it  was  held  in  Perkins  v. 
Spaulding,  2  Mich.  160,  that  the  omission  of 
the  name  of  the  defendant  in  execution  would 
not  vitiate  a  sale;  and  it  was  never  considered 
necessary  to  insert  the  name  of  the  plaintiff 
in  execution.  Cow.  Treat.  §  1620.  The  stat- 
ute has  also,  since  then,  received  a  legislative 
construction  by  the  amendment  of  1879,  pre- 
scribing that  the  notice  must  contain  the 
names  of  the  parties  to  the  suit.  How.  Ann.  St. 
§  6980.  Notices  of  foreclosure  sale  on  chat- 
tel mortgages  have  also  in  other  states  been 
held  valid,  notwithstanding  the  defects  point- 
ed out  in  the  present  notice.  Jones,  Chat. 
Mortg.  §  795;  Waite  v.  Dennison,  51  111.  319; 
McConnell  v.  Scott,  67  111.  274;  Fitzpatrick  v. 
Fitzpatrick,  6  R.  I.  64.  In  Waite  v.  Denni- 
son the  notice  gave  neither  the  date  of  the 
mortgage  nor  the  names  of  the  parties  to  it. 
It  was  not  signed  by  any  one,  but  stated  in 
the  body  of  the  notice  that  the  sale  would  be 
made  by  W.  A.  Butters  &  Co.,  without  stat- 
ing in  what  capacity  they  were  acting.  It 
was  shown  aliunde  that  they  were  the  agents 
of  the  mortgagee.  While  the  power  must  be 
strictly  pursued,  it  is  only  necessaiy  that  it 
be  fairly  executed.  There  is  nothing  to  be 
gained  by  requiring,  in  a  sale  of  this  kind,  any 
technicalities,  the  want  of  which  has  injured 
no  one. 

The  omissions  complained  of  in  this  notice 
are  mere  irregularities.  There  is  no  showing 
in  the  record  that  the  defendant  lost  anything 
thereby;  and,  if  the  strict  letter  of  the  ixiwer 
of  sale  was  not  complied  with,  there  was  no 
wrong  to  defendant.  No  one  could  complain 
but  the  mortgagors,  and  they  seem  to  be  con- 
tent. The  plaintiff,  as  mortgagee,  had  a  right 
to  take  possession  of  the  property,  and  the 
defendant's  act  of  selling  and  removing  it 
Avas  a  conversion.  McConnell  v.  Scott,  67  111. 
277.  The  amount  bid  for  the  property  by 
Manwaring  cuts  no  figure  in  the  case,  because 
the  amoimt  of  the  mortgage  debt,  at  the  time 
of  sale,  was  more  than  the  vahie  of  the  prop- 
erty. If  a  thous;ind  bidders  had  attended  the 
sale,  and  the  rtn-ord  is  silent  as  to  the  attend- 
ance, and  run  the  property  up  to  its  full 
value  or  more,  it  woiild  not  have  been  of  any 
benefit  to  the  defendant,  as  the  mortgage  debt 
in  that  event  would  have  swallowed  the  prop- 
erty. 

There  was  no  necessity  for  making  any  de- 
mand before  suit.  The  defendant  had  full 
notice  of  plaintiff's  claim,  and  was  a  tres- 
passer from  the  beginning. 

The  judgment  is  affirmed,  with  costs. 

The  other  justices  concurred. 


nXTUKES. 


'J5 


MERCHANTS'  NAT.  BANK  OF  CROOKS- 
TON   V.   STANTON   et  al. 

(56  N.  W.  821,  55  Minn.  211.) 

Supreme  Court  of  Minnesota.    Nov.   13,  1893. 

Appeal  from  district  court,  Polk  county; 
Ives,  Judffe. 

Action  by  the  Merchants'  National  Bank  of 
Crookston  against  Robert  Stanton,  S.  L.  Dob- 
son,  and  others  to  foreclose  a  mortg-:ige. 
From  a  judgment  for  plaintiff,  defendants 
Dobson  and  another  appeal.  Revei-sed  in 
part. 

A.  A.  Miller,  for  appellants.  John  Cromb 
and  A.  C.  Wilkinson,  for  respondent 

MITCHELL,  J.  The  real  issues  in  this 
■case  are  some>\'hat  obscured  by  the  prolixity 
of  the  stipulated  facts,  ^adopted  by  the  trial 
court  as  its  findings,)  which  contain  much 
that  was  unnecessaiy  for  the  detei-mination 
of  the  case  in  the  court  below,  and  still  more 
that  is  immaterial  in  the  decision  of  any  ques- 
tion involved  in  this  appeal.  The  primary 
object  of  this  action  was  to  for(.x.'lose  a 
mortgage,  and  the  piincipal  question  in  the 
case  is  whether  a  certain  building  and  the 
machiueiT  therein,  situated  on  the  mort- 
gaged premises,  was,  as  between  the  plaintiff 
and  defendants  Dobson  and  Martin,  the  per- 
sonal property  of  the  latter,  or  a  part  of 
the  realty,  and  hence  covered  by  plaintiff's 
mortgage.  The  short  facts,  so  far  as  ma- 
terial to  that  question,  are  as  follows:  De- 
fendant Stanton  executed  to  plaintiff  the 
mortgage  in  suit  on  his  own  real  estate  to  se- 
cui'e  the  joint  debt  of  himself  and  defendant 
Dobson.  Subsequently  Dobson,  ""with  the 
knowledge  and  consent"  of  Stanton,  erected 
and  put  on  the  mortgaged  premises  the  build- 
ing and  machinery  referred  to,  at  his  own 
sole  expense,  and  mainly  with  money  loaned 
to  him  by  defendant  Martin,  to  Avhoui,  as 
security  for  its  repayment,  he  executed  a 
biU  of  sale  and  chattel  mortgage  on  the 
building  and  machinery.  The  building  was 
a  large,  two-story  frame  stnicture  designed 
for  "an  oatmeal  mill,"  with  a  one-stoi'y  brick 
addition  for  an  engine  and  boiler  room,  in 
which  were  placed  machinei-y  suitable  to 
manufacture  oatmeal,  and  an  engine  and 
"boiler,  pulleys  and  shafting,  sulhcient  to 
operate  the  same.  This  machineiy  was  of 
the  kind  usually  put  in  oatmeal  mills,  and 
was  placed  in  and  attached  to  the  building 
in  the  usual  way,  some  of  it  being  screwed 
to  the  floor  of  the  building,  and  some  of  it 
bolted  to  framework  which  was  fasti>ned  to 
the  floor,  and  some  of  it  held  in  position  by 
its  own  weight  and  all  of  it  operated  by 
shafting  and  belting,  with  power  furnished  by 
the  engine  and  boiler.  There  is  no  doubt 
but  that  such  a  building  and  macliiuery 
woiild,  in  the  absence  of  any  agivement  of 
the  paiiies  to  the  contraiy,  become  a  part  of 
the  realty,  and  belong  to  the  owner  of  the 
soil.    Prima  facie,  aU  buildings  belong  to  the 


owner  of  the  land  on  which  they  stand  as 
part  of  the  realty.  It  is  only  by  virtue  of 
some  agreement  with  the  owner  of  the  land 
that  buildings  can  be  held  by  another  party 
as  personal  property.  If  erected  wrongfully, 
or  without  such  agreement,  they  become  the 
property  of  the  owner  of  the  soil.  But  it 
is  entirely  competent  for  the  parties  to  agree 
that  they  shall  remain  the  personal  property 
of  him  who  erects  them,  and  such  an  agix?e- 
ment  may  be  either  express  or  implietl  from 
the  circumstances  under  which  the  buildings 
are  erected.  The  trial  court  has  made  no 
direct  or  express  finding  as  to  whether  there 
was  any  such  agreement  between  Dobson 
and  Stanton,  and  the  question  here  is  (first 
treating  the  case  as  if  the  controvei-sy  was 
between  them)  whether  the  facts  found  es- 
tablish prima  facie  an  implied  agreement  for 
si^parate  ownership  of  the  building  and  ma- 
chinery. The  fact  that  Stanton  had  mort- 
gaged this  property  to  sectire  a  debt  owing 
by  Dobson  as  well  as  himself  has  no  bear- 
ing upon  the  question  in  hand.  That  fact 
would  not  render  it  to  Dobson's  interest  to 
expend  his  own  money  for  the  benefit  of 
the  land.  Neither  does  the  fact  that  the 
building  was  erected  with  money  furnLshe<l 
to  Dobson  by  Martin  affect  the  question. 
Hence,  reducing  the  facts  found  to  their  low- 
est denomination,  they  amotmt  to  just  this: 
Dobson,  who  had  no  estite  in  the  land, 
erected  the  mill  at  his  own  expense  on  the 
land  of  Stanton,  "with  the  knowletlge  and 
consent"  of  the  latter.  The  court  did  not 
find,  and  the  stipulatcni  facts  do  not  disclose, 
a  single  other  fact  bearing  on  the  question  of 
the  intention  or  implied  agreement  of  the 
parties.  The  finding  does,  however,  amount 
to  one  that  the  building  was  erected  by  per- 
mission and  license  from  Stanton.  At  firet 
we  entertained  some  doribt  whether  this 
alone  was  sufficient  to  establish  an  implied 
agreement  for  separate  ownership.  Such  an 
implication  would  not  be  drawn  when  a  dif- 
fei'ent  intention  of  the  parties  is  indietited 
by  the  terms  of  any  express  agi'eement  be- 
tween them  on  the  subject,  or  when  a  differ- 
ent intention  is  to  be  infen-ed  from  the  in- 
terest of  the  party  making  the  erections  or 
from  his  relations  to  the  title  of  the  land. 
But  we  have  aiTived  at  the  conclusion  that, 
where  the  erections  arc  made  by  one  ha\ing 
no  estate  in  the  land,  and  hence  no  interest 
in  enhancing  its  value,  by  the  permission  or 
license  of  the  owner,  an  agreement  that  the 
structures  shall  remain  the  property  of  the 
person  makuig  them  will  be  implied,  in  the 
absence  of  any  other  facts  or  circumstances 
tending  to  show  a  different  intention.  This 
seems  to  us  a  reas<mable  doctrine,  and  one 
supported  by  the  authorities,  although  we 
admit  that  in  all  the  eases  we  have  ex- 
amined, including  our  own  case  of  Little  v. 
WUlford,  31  Minn.  173,  17  N.  \V.  Rep.  282, 
there  were  always  some  other  facts  or  cir- 
cumstances in  evidence  bearing  upon  the 
question  of  the  intention  of  the  partitas.  In- 
deed,   it    would    be    diflicult    to    conceive    of 


26 


CHATTELS  REAL. 


any  case  whore  this  would  not  be  the  fact 
if  all  the  circurusuuices  bearing  on  the  ques- 
tion were  fully  in  evidence.  The  present 
case  comes  up  in  the  peculi;ir  shape  it  does 
because  submitted  on  stipulated  facts  prob- 
ably more  or  less  incomplete.  See  Howard 
T.  Fo-sseuden,  14  Allen.  I'J 4-128:  also  Prince 
v.  Case,  2  Amer.  Lead.  Cas.  (oth  Kd.i  5<52.  We 
are  therefore  of  opinion  that  the  facts  found 
establish  prima  facie  an  implied  agriH-ment 
between  Dobson  and  Stanton  for  .separate 
ownership  of  this  building  and  machinerj-, 
and  hence  that,  at  least  as  between  them, 
they  woidd  have  remained  the  personal  prop- 
erty of  Dobson. 

But  plaintiff  contends  thai  to  render  it 
personal  property  as  to  it,  it  shoidd  have 
been  a  party  to  the  agreement  to  that  effect; 
and  that,  in  the  absence  of  any  such  agree- 
ment on  its  part,  its  rights  must  be  de- 
termined by  the  rule  which  obtain.s  between 
mortgagor  and  mortgagee,  which  is  that  all 
fixtiu-es  annexed  to  the  land  by  the  mort- 
gagor become  part  of  the  mortgage  security; 
and  that  the  mortgagor  cotild  not  give  to  a 
tenant  or  licensee  a  right  which  he  himself 
did  not  possess.  Independently  of  any  tech- 
nical grounds,  there  are  manifestly  good  rea- 
sons why  this  should  be  the  rule  as  to  the 
mortgagor  himself,  for.  being  the  owner  of 
Innd.  and  presumably  looking  to  its  redemp- 
tion, it  must  be  presumed  that  what  he  adds 
to  it  is  for  the  benefit  of  his  own  estate, 
which  he  can  always  save  by  redeeming  the 
premises.  It  undoubtedly  was  formerly  the 
rule  that  all  fixtiu-es  annexed  sul)sequently 
to  the  execution  of  the  mortgage,  whether 
annexed  by  the  mortgagor  or  by  his  tenant 
or  licensee  under  a  lease  or  license  subse- 
quent to  the  mortgage.  I^ec-ame.  as  to  The 
mortgagee,  a  part  of  the  realty.  But  this 
rule  was  founded  upon  the  old  common-law 
doctrine  that  a  mortgage  was  a  conveyance 
under  which  the  mortgagee  became  the  legal 
owner,  and  was  entitled  to  immediate  pos- 
session, the  mortgagor  in  possession  being 
considered  strictly  his  tenant  at  will.  This 
is  still  the  rule  in  those  states— notably 
Massachusetts — which  adhere  to  the  doc- 
trine that  a  mortgage  is  a  conveyance.  But 
the  reasons  for  the  rule  have  no  application 
where,  as  in  this  state,  a  mortgage  is  a  m«Te 
security,  and  neither  conveys  the  title  nor 
gives  any  right  to  the  possession.  Hence 
in  those  states  where  a  mortgage  is,  as  with 
us,  a  mere  security,  there  is  a  general  tenden- 
cj'  to  repudiate  the  old  rule  as  inapplicable, 
and  to  hold  that,  as  to  fixtures  placed  on  the 
mt-rtgaged  premises  subsequently  to  the  ex- 
ecutiuu  of  the  mortgage  there  is  no  abso- 
lute pri'Siimption  that  they  were  annexed  for 
the  beneht  of  the  realty,  and  that,  where  the 
intention  or  agreement  of  the  mortgagor  and 
tliL'  part>'  making  the  annexation  was  that 
the  thiuir  annexed  should  not  become  part  of 
the  realty,  the  absence  of  a  concm-rent  agi"ee- 
loent  to  that  effect  on  part  of  a  prior  mort- 
gagee will  not,  of  itself,  make  the  annexa- 
tion a  part  of  the  mortgage  secm'ity.     This 


would  seem  just,  for,  the  annexation  not 
having  been  made  when  he  took  his  mort- 
gage, he  has  not  been  misled,  or  advanced 
ai.ything  on  the  faith  of  it.  and  hence  ought 
not  to  be  permitted  to  avail  himself  of  it 
as  a  part  of  his  security,  contrary  to  the 
intention  of  the  party  making  the  annexa- 
tion. Crippen  v.  Morrison,  13  Mich.  23; 
Davenport  v.  Shants,  43  Yt.  546.  See,  also, 
Tift  V.  Horton.  53  X.  Y.  3S0.  We  are  there- 
fore of  opinion  that,  upon  the  facts  presented 
by  the  record,  plaintiff  has  no  better  or  great- 
er right  to  these  annexations  than  Stanton 
woiUd  have. 

Certain  questions  arise  as  to  the  correct- 
ness of  the  directions  of  the  com't  as  to  the 
order  in  which  the  premises  covered  by  the 
several  mortgages  of  the  parties  should  be 
sold,  and  as  to  the  distribution  of  the  pro- 
ceeds. As  only  Dobson  and  Martin  appeal, 
their  rights  alone  can  be  considered,  and  the 
rights  of  the  other  defendants  are  material 
only  so  far  as  they  bear  upon  the  rights  of 
the  appellants.  The  material  facts  are  as 
follows:  Dobson  owned  three  tracts  of  land, 
which,  for  convenience,  we  will  call  tracts 
A.  B,  and  C,  a  part  of  C  being  his  homestead. 
He  and  his  wife  executed  first  a  mortgage 
on  A;  second,  a  mortgage  on  both  A  and 
B;  and,  third,  a  mortgage  on  C,  (including 
his  homestead.)  as  additional  security  for  the 
same  debt  securefl  by  the  second  mortgage. 
All  of  those  mortgages  are  now  held  by  the 
defendant  Martin.  Subsequently  to  the  ex- 
ecution of  these  mortgages,  Dobsou  and  wife 
conveyed  these  tracts  by  warranty  deed  in 
the  following  order  of  time:  First,  tract  A 
to  defendant  Stanton,  who  then  executed 
thereon  to  plaintiff  the  mortgage  now  being 
foreclosed;  second,  tract  B  to  defendant 
Cunningham;  third,  all  of  tract  C,  except 
their  homestead,  to  defendant  Palmer.  In 
this  action  the  plaintiff  asks  for  the  fore- 
clostire  both  of  its  own  mortgage  and  of  the 
three  Martin  moi^gages.  and  that  the  lands 
covered  by  all  of  them  be  sold,  and  the  pro- 
ceeds applied  according  to  rights  of  the  sev- 
eral parties.  If  seasonably  objected  to,  per- 
haps aU  of  this  could  not  be  done  in  this 
action,  but  none  of  the  defendants  objected 
to  it,  and  defendant  Martin,  in  his  answer, 
imites  with  plaintiff  in  asking  that  it  be 
done.  In  its  judgment,  the  trial  court,  after 
directing  that  all  four  mortgages  be  fore- 
closed, and  all  the  property  covered  thereby 
be  sold,  further  directed,  among  other  things: 
First,  that  all  of  the  proceeds  of  the  sale  of 
tracts  B  and  C  l>e  applied  on  Martin's  second 
and  third  mortgages  (which  may  be  treated 
as  one,  being  secm-itj'  for  the  same  debt) 
before  applying  thereon  any  of  the  proceeds 
of  tract  A;  second,  that  the  several  lots  con- 
stituting tract  C  be  sold  separately,  and  that 
the  lot  constituting  Dobson's  homestead 
should  only  be  sold  in  case  the  other  prop- 
er tj-  covered  by  the  second  and  third  mort- 
gages did  not  bring  enough  to  satisfy  the 
debt  secm-e<l  thereby.  The  first  of  these  di- 
rections   was    intended,    in    the    interest    of 


FIXTURES. 


27 


plaintiff's  mortgage,  to  marshal  the  secm-i- 
tles  so  as  to  require  Martin  to  exliaust  the 
other  property  covered  by  his  mortgages  be- 
fore resorting  to  tract  A,  on  which  alone 
plaintiff  had  a  lien.  Defendant  Martin  urges 
that  marshaling  of  assets  or  securities  is 
only  admissible  between  creditors  of  the 
same  common  debtor,  to  whom  both  funds 
or  secm'ities  belong.  To  this  general  rule 
there  are  some  apparent  exceptions,  which, 
however,  are  within  its  spirit.  For  example, 
it  wiU  be  allowed  between  creditors  of  dif- 
ferent persons  where  it  appears  that  the  debt- 
or whose  estate  is  sought  to  be  charged  is 
primarily  liable,  and  this  for  the  same  rea- 
son that  subrogation  may  be  admitted  where 
the  two  securities  belong  to  different  per- 
sons if  the  fund  not  taken  be  one  which 
in  equity  is  primarily  liable.  Proceeding  on 
the  same  principle  is  the  equity  rule  that,  if 
the  owner  of  mortgaged  lands  sells  portions 
of  them  to  third  parties,  retaining  part  of 
them  himself,  vmless  the  purchasers  took 
cum  onere,  the  portion  so  remaining  in  the 
mortgagor  becomes  the  primary  fund  for  the 
payment  of  the  mortgage,  and  the  portions 
sold  are  liable  in  the  inverse  order  of  their 
alienation.  This  is  exactly  this  case.  Stan- 
ton could  have  insisted  on  the  application 
of  this  rule,  and  plaintiff,  his  mortgagee, 
stands,  in  that  regard,  in  his  shoes.  The  ap- 
plication of  this  same  principle  fully  dis- 
poses of  Dobsou's  contention  that  his  home- 
stead should  not  have  been  sold  until  all 
the  othei-  property  covered  by  the  Martin 
mortgages,  including  tract  A.  liad  been  ex- 
liausted.  In  McArthiu-  v.  Martin,  23  Minn. 
74,  we  held  that  where  A.  held  a  mortgage 
on  two  tracts  of  land,  one  of  which  was  the 
homestead  of  the  mortgagor,  and  B.  held  a 
judgment  against  him  which  was  a  lien  only 
on  the  other  tract,  A.  would  not  be  com- 
pelled to  resOTt  to  the  homestead  first  in  or- 


der to  leave  the  other  tract  as  far  as  may 
be  to  B.  This  was  upon  the  ground  that 
to  apply  the  rule  in  reference  to  marshaling 
securities  in  favor  of  a  judgment  creditor, 
who  obtains  his  lien  by  proceedings  in  in- 
vitum,  and  not  by  contract  of  his  debtor, 
would  be  but  an  indirect  method  of  subject- 
ing a  homestead  to  the  payment  of  debts; 
that,  under  such  circumstances,  a  judgment 
creditor  has  no  equity  as  against  the  home- 
.stead  right  of  the  debtor  and  his  family. 
But  where,  as  in  this  case,  the  mortgagor 
and  his  wife  have  voluntarily  conveyed,  with 
covenants  of  warranty,  a  portion  of  the 
mortgaged  premises,  tliey  have  no  equitable 
right  to  insist  that  their  homestead  shaU  be 
protected,  to  the  displacement  of  the  coun- 
tervailing equity  of  their  grantee  that  the 
portion  of  the  mortgaged  premises  retained 
by  tliem  shall  be  the  primary  fund  for  the 
payment  of  the  mortgage.  In  the  absence 
of  legislation  or  of  express  agreement  to 
that  effect,  the  coiirts  are  not  warranted  in 
interpolating  any  such  stipulation  into  thr 
contracts  of  parties. 

The  seventh  conclusion  of  law  of  the  trial 
court  is  also  assigned  as  error.  Taken  liter- 
ally, it  might  seem  to  mean  that  the  court 
directed  the  payment  to  plaintiff  of  the  pro- 
ceeds of  property  not  covered  by  its  mort- 
gvf:;e.  Tlie  court  certainly  could  not  have 
intended  this,  and,  if  the  language  implies 
that,  it  was  doubtless  an  inadvertent  verbal 
inaccuracy,  which  the  court  woidd,  and  still 
will,  correct  upon  his  attention  being  called 
to  it. 

Upon  the  appeal  of  Dobson  the  judgment 
is  affirmed,  and  upon  the  appeal  of  Martin 
that  part  of  the  judgment  which  adjudges 
that  the  mill  and  machinery  referred  to  are 
a  part  of  plaintiff's  mortgage  seem-ity,  is  re- 
versed, and  a  new  trial  of  that  issue  only  is 
ordered. 


28 


CHATTELS  REAL. 


BARTLETT  v.   IIAVILAND. 

(52  N.  W.  1(.>08,  92  Mich.  552.) 

Supreme   Court   of   Michigan.     July   28,    1892. 

Error  to  circuit  court,  Grand  Traverse 
county;    J.  G.   Ramsdell,  Judge. 

Trover  by  AVaylaud  W.  Bartlett  against 
Adaline  A.  Havihiud.  From  a  judgment  ren- 
dered on  the  verdict  of  a  jury  in  favor  of 
plaintiff,   defendant  brings   error.     Atiirmed. 

Pratt  &  Davis,  for  appellant.  Dunham  & 
Preston,  for  appellee. 

GRANT,  J.  This  is  an  action  of  trover  for 
the  conversion  of  1  shingle  mill  frame,  1 
knot  sawing  machine  and  arbor,  7  small  cir- 
cular saws.  200  feet  of  belting,  50  feet  of 
shafting,  20  pulleys.  1  gemming  machine  com- 
plete, 1  shingle  jointer  complete,  1  wheel- 
barrow. 1  crowbar.  1  cant  hook,  and  1  edger 
complete.  Plaintiff  had  verdict  and  judg- 
ment. The  evidence  tended  to  show  the  fol- 
lowing facts:  In  1872  a  copartnership,  com- 
posed of  the  plaintiff  and  two  others,  under 
the  firm  name  of  Bartlett.  Bonny  &  Saxton, 
owned  a  piece  of  land  upon  which  was  situ- 
ated a  portable  steam  sawmill,  containing  a 
boiler,  engine,  and  double  circular  mill,  with 
some  belting,  which  was  covered  by  a  build- 
ing so  that  it  could  be  taken  out  without  in- 
jury. The  firm,  while  owning  both  the  land 
and  the  mill,  gave  a  mortgage  on  the  land, 
and  a  chattel  mortgage  upon  the  mill  and 
machinerj-,  to  one  Gregg.  Subsequently 
plaintiff  acquired  the  interest  of  his  partners 
in  both  the  land  and  the  mill.  This  was  in 
1873.  In  1876  the  real-estate  mortgage  to 
Gregg  was  foreclosed.  After  the  foreclosure 
plaintiff  continued  in  possession  of  both  the 
land  and  the  mill  as  tenant.  In  1880  the  pur- 
chaser of  the  land  at  the  foreclosure  sale 
sold  and  conveyed  it  to  plaintiff's  wife,  tak- 
ing back  a  mortgage  for  part  of  the  purchase 
price.  Subsequently  this  mortgage  was  dis- 
charged, and  Mrs.  Bartlett  gave  a  real-estate 
mortgage  to  Gage,  who  was  evidently  the 
purchaser  at  the  foreclosure  sale,  for  ?200, 
dated  January  14,  1884.  Gage  knew  that 
plaintiff  was  in  possession  of  the  premises, 
and  understood  that  he  claimed  to  be  running 


the  mill,  and  had  some  machinery  there,  and 
he  did  not  suppose  that  his  mortgage  covered 
the  machinery.  This  mortgage  was  assigned 
by  Gage  to  the  defendant,  who  did  not  ex- 
amine the  property,  and  made  no  inquiries  as 
to  who  was  in  possession.  The  property  now 
in  dispute  was  placed  upon  the  premises  after 
the  execution  of  the  first  mortgage,  and  be- 
fore the  execution  of  the  second  mortgage  by 
Mrs.  Bartlett  to  Gage.  Plaintiff  took  his 
wife's  acknowledgment  to  the  second  mort- 
gage. This  mortgage  was  foreclosed,  and 
bid  in  by  the  defendant.  After  the  time  of 
redemption  had  expired  she  took  possession 
of  the  land,  and  of  this  property,  claiming 
that  it  was  covered  by  the  mortgage.  The 
machines  were  fastened  to  the  floor  by  cleats 
or  bolts,  in  such  a  manner  that  they  could  be 
removed  without  injury  to  the  building,  while 
the  saws  were  hung  upon  hooks. 

It  was  said  by  this  court  in  Scudder  v.  An- 
derson, 54  Mich.  120,  19  X.  W.  775:  "It  is 
impossible  to  regard  personal  property,  capa- 
ble of  removal  from  the  land,  which  does  not 
belong  to  the  landowner,  as  part  of  the  real- 
ty." Upon  the  question  of  fixtures  this  ca.se 
is  ruled  by  that  case,  and  Conrad  v.  Mining 
Co.,  54  Mich.  249,  20  N.  W.  39.  Plaintiff  was 
a  tenant  at  the  time  he  placed  the  machines 
upon  the  land.  There  was  therefore  no  unity 
of  title  to  the  realty  and  the  machinery. 
There  is  no  conflict  about  the  material  facts, 
and  the  court  would  have  been  justified  in 
instructing  the  jury  that  the  property  had  not 
become  a  part  of  the  realty.  I  see  no  reason 
in  holding  that  plaintiff  is  estopped  to  assert 
title  by  the  fact  that  he  witnessed  and  took 
the  acknowledgment  of  his  wife's  mortgage. 
There  was  nothing  in  the  mortgage  to  indi- 
cate that  it  covered  this  property.  Plaintiff 
was  in  possession,  the  mortgagee  knew  it.  and 
understood  that  he  claimed  the  property. 
The  assignee  of  the  mortgage  occupies  in  this 
case  no  other  or  different  position  from  that 
of  her  assignor.  There  is  no  room  for  the 
doctrine  of  estoppel.  Objections  were  raised 
to  the  admission  of  certain  evidence,  and  to 
portions  of  the  charge  of  the  court,  but  under 
the  above  disposition  of  the  case  they  become 
immaterial.  The  judgment  is  affirmed.  The 
other  justices  concurred. 


FIXTURES. 


29 


LANSING  IRON  &  ENGINE  WORKS  v. 
WALKER. 

(51  N.  W.  lOGl,  91  Mich.  4(J9.) 

Supreme   Court  of  Michigan.     April  22,  1892. 

Error  to  circuit  court,  Jackson  county;  Eras- 
tu.s  Peck,  Judge. 

Trover  by  the  Lansing  Iron  &  Engine  Works 
against  James  Walker.  Judgment  for  plain- 
tiff.    Defendant  brings   error.     Affirmed. 

Thos.  E.  Barkwortli.  for  appellant.  CahiU 
&   Ostrander,   for  appellee. 

McGRATII,  J.  In  November,  1886,  plain- 
tiff and  one  Myers  entered  into  a  written 
contract,  by  the  terms  of  which  plaintiff 
agreed  to  sell  to  Myers  "one  .stationary  Stand- 
ard sawing  rig  complete,  which  includes  one 
oO-horse-power  engine,  lOxlG;  No.  o  boiler, 
with  throttling  or  automatic  governor,  which- 
ever is  considered  best,  with  all  boiler  fix- 
tures; Standard  miU  complete,  with  54-inch 
planer,  saw,  belting,  pipes,  and  connections, 
etc.;  and  one  picket  mill,  with  3G-inch  solid 
saw,  with  friction  feed,  etc.,  rigged  for  cut- 
ting pickets,  14  in.  and  up,  with  proper  shaft- 
ing and  pullej'S,  to  mu  with  or  without  the 
above  Standard  sawmill.  Said  machinery 
to  be  ready  for  delivery  at  the  Lansing  Iron 
Works,  Lansing.  Mich.,  on  or  about  the  28tii 
day  of  November,  188G.  *  *  *  It  is  fur- 
ther agreed  that  the  title  and  right  of  posses- 
sion of  the  aforesaid  macliiuery  shall  remain 
in  the  above  first  party  until  the  price  is  paid 
in  full,  according  to  the  notes  accompanying 
this  contract,  when  the  same  shall  vest  in  the 
party  of  the  second  part.  But  it  is  also  agreed 
that  the  second  partj'  may  take  said  ma- 
chinery, when  completed  and  delivered,  and 
run  the  same  in  the  township  of  Sandstone, 
county  of  Jackson,  and  in  adjacent  town- 
ships, and  retain  and  use  it  so  long  as  he 
takes  reasonable  care  of  the  same,  and  is  not 
in  default  in  any  of  his  payments  as  herein 
provided."  Payments  were  to  be  made  un- 
der said  contract,  $1.")U  on  or  before  the  deliv- 
ery of  the  machinery,  $350  on  or  before  Jime 
1,  1887.  and  the  balance  in  two  annual  pay- 
ments. Myers  paid  the  $150,  and  the  machin- 
ery was  delivered  to  him.  lie  owned  an  un- 
divided interest  in  a  farm  in  the  townsliip  of 
Sandstone,  to  which  lie  removed  the  machin- 
eiy,  and  set  it  up.  The  boiler  was  bricked  in 
and  arched  up,  and  the  engine  was  set  up- 
on brickwork,  and  bolted  down  to  the  foun- 
dation. Tlie  l)oiler  and  engine  were  covered 
over, — a  part  with  a  board  roof,  and  a  part 
with  a  shingled  roof.  The  sawmill  and  car- 
riage were  uncovered.  In  February,  1888, 
Myers  conveyed  the  farm  by  quitclaim  deed  to 
the  defendant,  and  trover  is  brought  by  rea- 
son of  the  refusal  to  pay  the  balance  due 
plaintiff,  under  the  agreement  between  plain- 
tiff and  Myers.  The  court  directed  a  verdict 
for  plaintiff  for  the  amount  of  the  balance, 
and  defendant  appeals. 

Defendant  contends  that  the  case  should 
have   been   submitted   to   the   jury    upon    tlie 


question  of  fact  raised  by  the  testimony  as 
to  whether  the  purcliase  made  by  defendant 
from  Myers  was  one  made  in  good  faith  for  a 
valuable  consideration,  and  without  notice  of 
anj  claim  of  the  plaintiff  against  the  i)roperty 
purchased.  The  case  is  ruled  by  Adams  v. 
I^e,  31  Mich.  440,  and  Robertson  v.  Corsett, 
39  Mich.  777.  In  Adams  v.  Lee,  the  court 
say:  "All  the  time,  therefore,  the  parties  ha\*e 
had  title  lo  tlie  machinery  distinct  from  their 
title  to  the  land,  and  this  fact  of  itself  is  con- 
clusive that  the  former  was  personaltj-;  for 
to  constitute  a  fixture  there  must  not  only  be 
phj-sical  annexation  in  some  form  to  the  real- 
ty, but  there  must  be  unity  of  title,  so  that  a 
conveyance  ot  the  realty  woiUd  of  necessity 
convey  the  fixtiu-e  also.  When  the  ownership 
of  the  land  is  in  one  person,  and  of  the  thing 
affixed  to  it  is  in  another,  and  in  its  nature  is 
capable  of  severance  without  injury  to  the 
former,  the  latter  cannot,  in  contemplation 
of  law,  become  a  part  of  the  former,  but  must 
necessarily  remain  distinct  propertj-,  to  be 
used  and  dealt  with  as  personal  estate  only. 
And  tlie  fact  that  the  owner  of  the  thing  af- 
fixed to  the  freehold  has  also  arf  undivided 
interest  in  the  latter,  cannot  render  the  former 
a  fixture  when  the  interests  are  different  in 
extent.  A  thing  cannot,  as  to  an  undivided 
interest  therein,  be  real  estate,  and  as  to  an- 
other undivided  interest  be  personalty.  It 
must  be  the  one  tiling  or  the  other.  And  the 
po.sition  which  is  taken  by  Lee  in  this  case  in- 
volves this  absm-dity:  that  Kaiffman,  at  the 
time  when  he  and  Kinney  were  severally  tlie 
owners  of  an  undivided  half  of  the  land,  might 
have  sold  that,  and,  as  a  necessary  conse- 
quence, transferred  an  undivided  one-half  of 
the  machinery  also,  though  the  whole  of  the 
machinery  belonged  to  Kinney  as  exclusive 
owner.  This  would  be  the  necessary  result 
if  the  machinery  was  real  estate,  for  there 
could  be  no  such  a  thing  as  attaching  it  to  an 
undivided  interest  in  the  land  only."  In  Mor- 
rison V.  Berry,  42  Mich.  389,  4  N.  W.  731, 
the  ownersliip  of  the  land  and  of  the  thing 
affixed  was  in  one  and  the  same  person.  It 
was  there  held  that  the  annexation  of  the 
thing  to  the  freehold  was  not  the  wrongful 
act  of  the  landowner,  but  that  by  act  and  in- 
tervention of  the  claimant  the  articles  became 
a  part  of  the  freehold.  In  Knowlton  v.  John- 
son, 37  Mich.  47,  T.  owned  the  laud  and  mill. 
S.  was  the  lessee.  The  water  wheels  were  a 
part  of  the  sti-uctiire.  Plaintiffs  furnished 
the  water  wheels  to  S.,  with  the  understand- 
ing that  they  were  to  be  put  in  the  luiU,  and 
there  used;  and,  against  tlie  objection  of  T., 
the  old  wheels  were  taken  out  and  the  new 
put  in.  Six  months  afterwards  S.  surrendered 
his  lease,  and  T.  leased  to  M.  T.  finaUy  sold 
the  mill  property  to  def^-ndant  and  plain- 
tiffs brouglit  trover.  The  court  say:  "The 
plaintiffs  deliberately  agreed  that  Hie  water 
wheels  should  be  converted  in  all  outward  ap- 
pearance into  real  property,  and  they  thereby 
put  it  in  the  power  of  Trimmer  to  make  sale 
of  the   wheels  as  part  of  the  mill."     In  the 


30 


CHATTELS  REAL. 


present  case  the  contract  of  sale  provided  for 
the  use  of  the  machinery,  not  only  in  the  town- 
ship of  Sandstone,  but  in  adjoining  townships. 
Myers  was  not  the  sole  owner  of  the  land  up- 
on which  it  was  placed,  but  he  was  sole  own- 
er of  the  interest  in  the  machinery,  and  oper- 
ated it  solely  in  his  own  behalf.  The  struc- 
ture coveriufj  the  boiler  and  engine  was  but 
a*  temporary  one.  The  machinery  in  question 
did  not  consist  simply  of  a  pulley,  shaft,  or 
wheel  which  was  to  be  attached  to  other  ma- 
chinery already  a  part  of  a  sawmill,  and.  as 
such,  a  part  of  the  realty,  but  it  was  a  com- 
plete outfit,  designed  by  the  agreement  to  be 
portable.  There  was  nothing  done  by  plain- 
tiff indicative  of  an  intent  to  permit  the  ma- 
chinery- to  be  so  annexetl  to  realty  as  to  change 
its  character.  The  state  of  the  title  to  the 
realty,  and  the  conduct  of  Myers  regarding 
the  machineiy.  negatived  any  intent  on  his 
part  to  allow  his  interest  in  the  machinery 
to  be  absorbed  by  the  owners  of  the  realty, 
or  to  permit  it  to  be  merged.  The  circumstan- 
ces of  the  purchase  by  defendant  clearly  in- 


I  dicate  that  he  took  the  entire  interest  in  this 
machinery,   while   he   took  but  an  imdividei! 

;  interest  in  the  realty.  He  afterwards  oper- 
ated the  raacninery  as  sole  owner.  It  was 
held  in  Wheeler  v.  Bedell,  40  Mich.  603-69fi, 
that  there  is  no  universal  test  by  which  the 

'  character  of  what  is  claimed  to  be  a  fixture 
can  be  determined  in  the  abstract;  neither  the 
mode  of  annexation  nor  the  manner  of  use 

I  is  in  all  cases  conclusive.  It  must  usually 
depend  on  the  express  or  implied  understand- 
ing of  the  parries  concerned.  In  Coleman  v. 
Maiiufactiu-ing  Co..  3S  Mich.  30-40.  the  court, 
commenting  upon  a  line  of  authorities  w'hich 

I  seem  to  regard  the  manner  of  the  attachment 
to   the  realty  as  the   test,   say:    "This,   how- 

!  ever,  is  a  vei"y  extreme  view,  and  is  hardly 
compatible  with  the  tenor  of  our  own  pre- 
vious decisions.  It  seems  to  overlook  or  ig- 
nore one  test,  namely,  the  intent  of  the  partj- 
making  the  annexation."  See,  also,  Manwar- 
ing  V.  .Tenison.  01  Mich.  117,  27  N.  W.  899. 
The  judgment  is  afl3rmed. 
The  other  justices  concurred. 


FIXTURES. 


31 


FITZGERALD   v.   ANDERSON. 

(51  N.  W.  554,  81  Wis.  341.) 

Supreme  Court  of  Wisconsin.      Feb.  2.3,   1892. 

Appeal  from  circuit  court,  Douglas  county; 
R.  D.  Marshall,  Judge. 

Replevin  by  Thomas  Fitzgerald  against  N. 
J.  Anderson.  Judgment  for  plaintiff.  De- 
fendant appeals.     Reversed. 

The  other  facts  fully  appear  in  the  follow- 
ing statement  by  Winslow.  J.: 

Replevin  to  recover  a  frame  dwelling-house, 
IG  by  20  feet  in  size,  standing  upon  blocks 
upon  appellant's  land.  The  house  was  built 
by  one  Rudd  while  in  possession  of  the  prem- 
ises as  tenant  of  Anderson.  When  Rudd  left 
the  premises,  he  sold  the  house  to  Fitzgerald, 
who  sublet  the  house  to  one  Eastman.  Aft- 
erwards. Fitzgerald  prepared  to  move  the 
house  off  from  appellant's  land,  and  appel- 
lant stopped  the  removal,  whereupon  this  ac- 
tion was  brought  by  Fitzgerald.  Upon  the 
trial  a  verdict  for  respondent  was  directed 
and  rendered,  and,  from  judgment  entered 
thereon,  Anderson  appeals. 

Swift,  Murphy  &  Bundy,  for  appellant. 
Ross,  Dwyer  &  Smith,  for  respondent. 

WINSLOW,  J.  (after  stating  the  facts).  It 
is  settled  that  landlord  and  tenant  may,  by 
their  agreements,  treat  as  personal  property 
improvements  which  would  otherwise  be  part 
of  the  realty,  and  thus  convert  tliem  into  per- 
sonal property,  to  all  intents  and  purposes, 
as  between  themselves.  Smith  v.  Waggoner, 
50  Wis.  1.35,  0  N.  W.  5G8.  It  is  also  settled 
that  the  right  to  remove  such  improvements 
must  ordinarily  be  exercised  by  the  tenant 
while  still  in  possession  under  his  lease,  or  it 
will  be  lost.  Keogh  v.  Daniell.  12  Wis.  1G4; 
Josslyn  V.  McCabe,  46  Wis.  5!Jl,  1  N.  W.  174. 
It  appearing  here  that  Rudd.  the  original  ten- 
ant and  builder  of  the  building,  abandoned 
the  premises  without  removing  the  building, 
the  purchaser  of  the  building  cannot  recover 
unless,  by  some  agreement  with  the  owner  of 
the  real  estate,  the  right  of  removal  was  pre- 
served until  after  possession  was  given  up  by 
Rudd.  The  plaintiff's  case  must  depend  en- 
tirely upon  the  existence  of  such  an  agree- 
ment;   and,   unless   it  be   proven  by   uncon- 


trndicted  te.«tiniony,  the  verdict  for  the  plain- 
tiff should  not  have  been  directed.  Plaintiff 
depends  upon  the  following  testimony  of 
Rudd,  which  was  not  contradicted  by  Ander- 
son, to  establish  this  fact:  "Was  there  any- 
thing said  as  to  whether  you  had  or  had  not 
the  right  to  move  the  house?  Answer.  No." 
"Was  there  anything  said  between  you  and 
Anderson  in  reference  to  your  having  the 
right  to  move  the  house  at  the  time?  A. 
Well,  it  was  that  said  you  know;  it  was  said 
I  should  have  the  house  just  so  long  until  he 
?hould  sell  the  lot,  he  should  want  me  to 
move."  "Then  you  should  move  it  off?  A. 
Yes,  sir."  We  regard  this  testiiuony  as  en- 
tirely insufficient  to  justify  the  court  in  di- 
recting a  verdict  for  plaintiff.  It  contradicts 
itself  squarely,  and  counsel  would  be  entirely 
justified  in  arguing  to  the  jury  that  the  first 
answer  was  true  and  the  succeeding  ones 
false,  and  was  entitled  to  so  argue.  Further- 
more, it  is  doubtful  whether  the  last  two  an- 
swers, taken  alone,  should  be  construed  as 
extending  the  time  within  which  the  building 
might  be  removed  until  after  surrender  of 
possession.  This  is  not  necessary  to  be  de- 
cided, however,  as  it  is  plain  that  upon  the 
flat  contradiction  in  Rudd's  evidence  a  verdict 
for  the  plaintiff  should  not  have  been  direct- 
ed. For  this  error  the  judgment  must  be  re- 
versed. 

There  was  no  error  in  rejecting  the  record 
of  the  quit-tenant  proceedings  against  East- 
man. That  action  appears  by  the  record  to 
have  been  brought  by  A.  J.  Anderson.  The 
defendant's  name  is  N.  J.  Anderson.  The 
variance  is  fatal. 

It  is  objected  that  replevin  will  not  lie  for  a 
building,  even  though  as  between  the  parties 
it  be  personality.  Such  a  doctrine  was  once 
maintained,  but  the  current  and  weight  of 
modern  authority  is  that  replevin  may  be 
brought;  and  no  good  reason  is  perceived 
^^hy.  if  the  building  be  to  all  intent  and  pur- 
poses personalty,  as  between  the  parties  to 
the  action,  and  it  be  not  actually  attached  to 
the  soil,  the  remedies  appropriate  to  person- 
alty should  not  be  used.  Cobbey,  Rep.  §  3(>4, 
and  cases  cited.  Judgment  of  the  circuit 
court  reversed,  and  action  remanded  for  a 
new  trial. 


32 


CHATTELS  REAL. 


FREE  V.   STUART  ct   al. 

(57  N.  W.  001.  39  Neb.  220.) 

Supreme  Court  of  Nehrask.'i.    Feb.  7.  1894. 

Appeal  from  district  court,  Donjrlas  coun- 
ty; Hopewell,  Jud?re. 

Action  by  M.  E.  Free  against  Stuart  & 
Schemensky  and  Georsre  W.  Sautter  and  :in- 
otlior  to  foreclose  a  chattel  niort,Ta?e.  Tbore 
was  jud^'iuent  for  plaintiff,  and  defendants 
Sautter  and  another  appeal.    Reversed. 

Chas.  Offutt  for  appellants.  Cavansgh, 
Thomas  &  McGilton,  for  appellee. 

NORVAL,  C.  J.  Tills  action  was  brought 
in  the  court  below  by  appellee,  M.  E.  Free, 
to  foreclose  a  cliattel  mortgage  given  by  the 
defendants  Stuart  &  Schemensky  on  two 
greenhouses  erected  by  them  on  leased  real 
estate  owned  by  appellants,  George  W.  Saut- 
ter and  Frank  Sautter.  The  cause  was  tiied 
by  the  district  com't  upon  a  written  agreed 
statement  of  facts,  signed  by  the  attorney 
of  the  respective  parties,  of  which  the  fol- 
lowing is  a  copy:  "(1)  In  the  spring  of  l.SSS 
the  said  Geo.  W.  and  Frank  Sautter  were 
the  owners  in  fee  of  a  certain  dwelling 
house,  without  outbuildings  and  about  ten 
acres  of  land  stu-rounding.  in  the  outskirts  of 
the  city  of  Omaha,  and  within  the  Umits  of 
said  city.  That  at  said  time  said  Sautter 
brothers  rented  the  house  and  outbuildings 
only  from  April  1,  ISSS,  to  March  1,  1SS9,  to 
the  defendant  C.  Schemensky,  for  $100.00. 
The  rent  for  this  term  was  paid.  (2)  At  the 
end  of  this  term  said  Geo.  W.  and  Frank  Saut- 
ter rented  the  house,  barn,  orchard,  vineyard, 
and  all  the  land  for  one  year  for  $200.00.  the 
lease  expiring  March  1,  1S90,  and  of  this  rent 
the  tenant,  Schemensky,  paid  .$93.00,  leaving 
a  balance  still  unpaid  of  $107.00.  (3)  At  the 
end  of  this  term,  on  March  3.  1S90,  said  Geo. 
W.  and  Frank  Sautter  rented  the  same  prem- 
ises for  another  year  to  said  Schemensky  for 
$223.00,  the  lease  expiring  March  1,  1S91. 
Of  this  rent  there  was  paid  $13.40.  (4)  At 
the  end  of  the  last  term  the  tenant,  Sche- 
mensky, held  over  until  May  12,  1891,  at 
which  time  the  tenant  quit  the  possession 
and  occupation  of  the  premises,  leaving  a 
total  of  rent  unpaid  amounting  to  the  sum  of 
$341.60,  no  part  of  which  has  yet  been  paid. 
(5)  That  in  the  spring  of  1S90  said  Schemen- 
sky requested  permission  of  said  Geo.  W. 
and  Frank  Sautter,  owners  of  said  premises, 
to  erect  thereon  two  buildings  and  a  boiler 
house,  and  that  the  same  were  erected  diu*- 
in.g  the  spring  and  early  summer  of  1890. 
They  were  erected  by  building  the  same  out 
of  planks  and  posts,  with  the  use  of  glass 
and  sash,  as  is  usually  the  case  in  green- 
houses, the  said  boards  or  planks  being  fas- 
tened to  a  number  of  upright  posts  that  were 
inserted  and  fastened  into  the  ground  for  a 
distance  of  about  two  feet  below  the  stu*- 
face.  The  framework  was  built  around  said 
posts.  (6)  That  there  was  also  constructed 
in  said  greenhouses  a  boiler  for  the  pm'pose 


of  heating  the  same,  by  building  a  brick 
foundation  down  into  the  ground,  and  build- 
ing said  brick  up  over  and  around  said  boil- 
er, leaving  it  stationary,  and  pipes  were  at- 
tached to  and  ran  from  said  boiler  through 
the  various  portions  of  the  house  so  conr 
sti-ucted,  and  fastened  to  the  said  green- 
house. In  order  thereby  to  conduct  the  heat- 
ed water,  and  for  the  pm'pose  of  keeping  the 
temperature  in  a  condition  reqtiired  for 
gi-eenhouses.  The  two  buildings  used  as 
greenhotises  were  each  75  feet  long  and  10 
feet  wide,  and  were  covereil  with  glass  and 
sash.  They  were  constructed  by  nailing 
sti'ips  running  from  post  to  post,  and  onto 
those  strips  the  planks  for  the  sides  and  ends 
were  nailed  secm'ely;  and  said  houses  and 
boiler  are  still  remaining  on  said  premises 
as  when  originally  constructed.  (7)  On  Jan- 
uary 14.  1891,  said  Schemensky  and  one  Stu- 
art, who  were  partners  as  Stuart  &  Sche- 
mensky, executed  to  the  plaintiff  a  chattel 
mortgage,  a  true  copy  of  which  is  attached 
and  made  a  part  of  plaintiff's  petition  here- 
in, and  the  same  was  filed  in  the  office  of 
the  county  clerk  of  Douglas  county,  Nebras- 
ka, on  said  14th  day  of  January,  1891,  at 
the  hotir  of  3:45  P.  M.,  and  duly  indexed  in 
said  office,  as  required  by  law  in  case  of  chat- 
tel mortgages,  said  chattel  mortgage  being 
to  secui'e  the  amount  of  money  stated  there- 
in; and  the  amount  now  due  thereon  and  un- 
paid by  said  mortgagors  to  the  plaintiff  is 
$182.40.  (8)  Said  property  was  leased  for 
the  purpose  of  using  the  residence  as  a 
dwelling  house,  and  the  land  for  the  purpose 
of  gardening,  raising  flowers  and  shrubs,  it 
having  been  used  for  this  purpose  for  sever- 
al years  last  past.  At.  the  time  said  houses 
were  constructed,  there  was  nothing  said  by 
the  tenant  about  removing  said  greenhouses, 
boiler,  and  boiler  house  at  the  expiration  of 
the  lease  or  at  any  other  time.  (9)  The  plain- 
tiff claims  a  lien  on  said  houses  and  boiler  by 
virtue  of  the  foregoing  chattel  mortgage,  and 
the  defendants  George  W.  and  Frank  Saut- 
ter claim  them  as  fixtures  to,  and  a  part  of, 
said  land."  The  trial  court  found  that  Stu- 
art &  Schemensky  executed  and  delivered  to 
plaintiff  the  chattel  mortgage  described  in 
the  petition  to  secure  an  indebtedness  of 
$1(>3.S4;  that  the  buildings  described  in  said 
mortgage  were  erected  by  the  mortgagors 
upon  leased  premises,  and  were  such  fixtures 
as  the  tenants  had  a  right  to  remove;  and 
that  said  houses  are  subject  to  the  said  chat- 
tel mortgage.  From  a  decree  of  foreclosure 
and  sale  the  Sautters  appeal  to  this  court. 

The  point  in  dis^iute  is,  which  party  is  en- 
titled to  the  buildings  covered  by  the  mort- 
gage? The  mortgagee  claims  them  by  vir- 
tue of  his  mortgage,  while  the  appellants  in- 
sist that,  as  the  improvements  were  erected 
by  tenants  on  leased  premises,  they  are  a  part 
of  the  realty,  and  neither  the  tenants  nor  the 
mortgagee  had  a  right  to  remove  them,  at 
least  after  the  expiration  of  the  tenancy. 
The  larger  portion  of  the  brief  of  counsel  on 
either  side  is  devoted  to  the  discussion  of  the 


FIXTURES. 


33 


law  of  fixtures,  and  what  are,  and  what  are 
not,  movable  fixtures.      The  decisions  on  the 
subject  are   at  variance  and   irreconcilable. 
We  have  not  the  time  at  our  disposal  now  to 
review  the  authorities  cited  in  the  briefs,  or 
to  discuss  the  question,    nor   is  it  essential 
tnat  we  should  do  so.     For  the  purposes  of 
this  case  we  will  assume  that  the  buildings 
In  controversy  were  trade  fixtures,  and  were 
erected  under  such  circumstances  as  to  enti- 
tle the  tenants  to  remove  them  had  they  ex- 
ercised that  right  in  time.     The  authorities 
are  quite  uniform  to  the  effect  that,  in  the 
absence  of  an  agreement  or  understanding 
to  thji  contrary,  a  tenant  cannot  re-enter,  and 
remove  his  flxtm-es  and  improvements,  after 
the  expiration  of  his  tenancy.     By  smren- 
dering   possession   he   forfeits   his  rights  to 
them.     The  rule  on  the  subject  is  well  stated 
by  Mr.  Taylor  in  his  valuable  work  on  Land- 
lord and  Tenant,  thus:    "The  decisions  also 
agree  that  whatever  fixtures  the  tenant  has 
a  right  to  remove  must  be  removed  before 
his  term  expires,  or  at  least  before  he  quits 
possession;     for,    if   the    tenant    leaves    the 
premises    without  removing   them,   and   the 
landlord  tal^es  possession,  they  become  the 
property  of  the  landlord.    The  tenant's  right 
to  remove  is  rather  considered  a  privilege  al- 
lowed   him   than   an   absolute   right   to  the 
things  themselves.    If  he  does  not  exercise 
the  privilege  before  his  interest  expires,  he 
cannot  do  it  afterwards,  because  the  right 
to  possess  the  land  and  the  fixtures  as  a  part 
of  the  realty  vests  immediately  in  the  land- 
lord;    and,    although    the    landlord    has   no 
right  to  complain,  if  the  land  be  restored  to 
him  in  the  same  plight  it  was  before  he  made 
the  lease,  yet  if  the  land  is  suffered  to  re- 
turn   to   him    with    additions   and    improve- 
ments, even  by  forfeiture  or  notice  to  quit, 
he  has  a  right  to  consider  them  as  part  of 
his   property."    And   in    the   case   of   Fried- 
lander  v.  Ryder,  30  Neb.  787,  47  N.  W.  83, 
in  considering  the  authority  of  a  tenant  to 
remove   his   fixtm-es,    we  said:    "Under   the 
lease,  as  established  by  the  evidence,  the  ten- 
ant had  a  right,  before  the  surrender  of  pos- 
session, to  remove  any  improvements  owned 
by  him  which  are  embraced  under  the  head 
of  tenant's  fixtures,  but  the  tenant  had  no 
authority  to  remove  such  improvements  aft- 
er the  termination  of  the  tenancy;    in  other 
words,  the  tenant  could  not  re-enter  to  re- 
move his  fixtures  after  the  sm-render  of  his 
possession    to    the    landlord."      It    appears 
from   the   stipulation   that   the   lease   iinder 
which    the    tenants    occupied    the    premises 
expired  on  March  1,  1891,  and  that  on  the 
12th  day  of  May   following  they  quit  pos- 
session without  removing  the  buildings  which 
they  had  erected  by  permission  of  the  owner 
of  the  realty.     The  record  fails  to  disclose 
that  there  was  any  agi-eement  or  \mderstand- 
ing  between  the  parties  about  the  removal  of 
the  improvements  at  the  expiration  of  the 
lease  or  any  other  time.    In  view  of  these 
facts,  there  could  be  no  doubt  that  the  ten- 
ants have  forfeited  their  right  of  removal. 

VAN  ZILE.SEL.CAS.rEll^-. — 3 


Counsel  for  appellee  contend  that  the  ten- 
ancy had  not  expired  when  the  tenants  sur- 
rendered possession;   that  they  were  tenants 
from  year  to  year;    and  although  the  lease 
terminated  March  1,  1891,  they  having  occu- 
pied the  premises  for  several  months  after 
that  time,  the  lease  was  thereby  continued  in 
force  for  another  year,  or  until  March,  1892. 
It  is  a  familiar  doctrine  that  where,  in  case 
of  a  tenancy  from  year  to  year,  the  tenant 
continues  to  occupy  the  property  after  the 
expiration  of  his  lease  by  the  consent  of  the 
landlord,  it  will  be  presumed,  in  the  absence 
of   an    express    agreement    to    the    contrary, 
that  the  lease  is  extended  for  another  year; 
but  we  are  unable  to  see  how  this  rule  can 
aid   the   appellee,    since    the  tenants   volun- 
tarily abandoned  possession,  and  it  does  not 
appear  that  either  they  or  the  landlord,  after 
such    abandonment,    regarded    the   lease    in 
force.     The  doctrine  that  the  right  of  a  ten- 
ant  to  remove   his  improvements    must   be 
exercised  before  the  expiration  of  his  lease 
applies  alike  to  cases  Avhere  the  tenancy  ter- 
minates by  lapse  of  time,  and  to  cases  where 
it  is  determined  by  his  own  act.     He  may 
forfeit  his  right  to  remove  his  fixtm-es   by 
voluntarily    sm-rendering    the   possession    to 
the  landlord  without  reservation.    It  is  quite 
probable,  however,  that  such  surrender  would 
not  affect  the  previously  acquired  rights  of 
the  tenants,  vendees,  or  mortgagees.     They 
should  have  the  right  to  enter  and  remove 
the   fixtures   at   any   time   before  the  lease 
would,  by  its  terms,  have  expired.     In  the 
case  at  bar  no  attempt  has  been  made  to  re- 
move the  buildings  at  any  time.     They  were 
on   the  premises   when  the  decree  of  fore- 
closure was  entered,  which  was  long  after 
March  1,  1892,  and  it  is  not  claimed  that  the 
tenancy    continued    after    that   date.     Upon 
principle  as  well   as  authority   we  are  con- 
sti-aiued  to  hold  that  the  mortgagees  forfeit- 
ed their  right  to  the  buildings  by  their  fail- 
m-e  to  exercise  it  during  the  tenancy. 

It  is  finally  contended  that  since  the  ten- 
ancy had  not  expired  when  the  mortgage  was 
given,  and  inasmuch  as  the  tenants  could 
have  removed  the  mortgaged  fixtures,  the 
appellee's  rights  vested  and  became  fixed, 
and  were  not  affected  by  the  subsequent  ter- 
mination of  the  lease.  The  mortgage  con- 
ferred the  same  rights  upon  the  mortgagee 
to  remove  the  fixtiu-es  that  the  mortgagors 
had,  and  no  greater.  AppeUee  was  therefore 
required  to  exercise  the  privilege  of  removal 
dm-ing  the  tenancy.  In  principle,  the  case 
at  bar  is  not  distinguishable  from  Fried- 
lander  V.  Ryder,  supra.  In  that  case  a  cred- 
itor caused  an  execution  to  be  levied  upon  a 
teuaut's  fixtures.  It  was  held  that  the  cred- 
itor thereby  acquired  no  greater  right  to  re- 
enter, and  remove  them,  than  the  tenant  had. 
A  case  precisely  in  point  is  Smith  v.  Park,  31 
Minn.  70,  16  N.  W.  490.  There  a  tenant  diu-- 
ing  his  term  had  executed  a  chattel  mort- 
gage upon  a  frame  building  upon  leased 
premises.  The  landlord  claimed  the  build- 
ing, and  the  mortgagee  brought  replevin  aft- 


34 


CHATTELS  REAL. 


er  the  lease  expired.  The  court  held  that 
the  mortgragee's  right  to  remove  the  building 
was  lost.  The  court,  in  the  opinion,  say: 
"The  plaintiff  stands  in  no  better  position 
than  did  Buri:ess,  [the  tenant.]  His  right  to 
the  propert}-,  as  against  the  landlord,  is  only 
such  as  the  tenant  under  whom  he  claimed 
had.     It  was  for  him  to  see  to  it  that  the 


building  was  removed  within  the  time  which, 
by  the  law  and  terms  of  the  contract,  was 
given  to  the  tenant  for  such  a  purpose." 
Oui*  conclusion  is  that  the  trial  court  erred  in 
decreeing  the  foreclosure  of  the  mortgage. 
The  decree  is  therefore  reversed,  and  the  ac- 
tion dismissed.  Judgment  accordingly.  The 
other  judges  concur. 


FIXTURES. 


35 


ADAMS   V.   LEE. 
(31  Mich.  440.) 
Supreme  Court  of  Michigan.     April  13,   1875. 
Error  to  circuit  court,  Van  Buren  county. 
George  W.  Lawtun.   for  plaintiff   in   error. 
I^ester  A.  Tabor,  for  defendant  in  error. 

COOLEY.  J.  The  fundamefital  error  of 
the  court  in  this  case  was  in  treating  the 
machinery  in  question  as  having  been  fix- 
tures annexed  to  the  freehold.  A  brief  re- 
cital of  the  facts  in  the  case  will  show  that 
such  could  not  have  been  their  legal  char- 
acter: 

The  real  estate  in  question  was  owned  by 
John  H..  Kaufman  May  29,  1867.  Before 
that  time,  under  some  arrangement  not 
shown,  and  not  now  important,  a  building 
had  been  erected  upon  this  real  estate,  and 
machinery  for  the  manufacture  of  wool  had 
been  put  into  the  same,  which  was  owned 
by  Augustus  E.  Hardy.  The  machinery  ap- 
pears to  have  been  annexed  to  the  building 
in  a  substantial  manner.  On  the  day  nam- 
ed, Kaufman  conveyed  an  undivided  one- 
fourth  of  the  real  estate  to  Hardy,  and  the 
latter  sold  to  Kaufman  an  undivided  one- 
half  of  the  machinery.  This  made  Kauf- 
man owner  of  three-fouilhs  the  land  and 
one-half  the  machinery,  and  Hardy  the 
owner  of  one-fourth  the  land  and  one-half 
the  machinery.  .Tanuary  29,  1868,  Kaufman 
sold  an  undivided  fourth  of  the  real  estate, 
together  with  his  half  of  the  machinery,  to 
Warren  G.  Kinney.  This  made  Hardy  and 
Kinney  owners  of  the  undivided  one-half  of 
the  real  estate  and  of  the  whole  of  the  ma- 
chinery. August  25,  1868,  Hardy  sold  to 
Kinney,  giving  him  a  deed  of  an  undivided 
one-fourth  of  the  real  estate,  and  delivering 
possession,  which  of  course  would  be  suffi- 
cient to  transfer  the  title  to  any  personalty 
which  might  have  been  included  in  the  sale. 
On  this  sale,  Kinney  gave  to  Hardy  a  mort- 
gage on  the  undivided  one-half  of  the  real 
estate  to  secure  the  payment  of  the  pur- 
chase price,  or  a  part  thereof.  The  machin- 
ery was  not  mentioned  in  this  mortgage, 
but  Lee,  who  has  become  purchaser  of  the 
mortgaged  premises  on  the  foreclosure  of 
this  mortgage,  claims  that  the  mortgage 
covered  the  machinery  as  fixtures,  and  so 
it  was  held  by  the  circuit  court.  Adams, 
on  the  other  hand,  asserts  a  right  to  the  ma- 
chinery by  a  purchase  of  it  as  pei-sonal  prop- 
erty, made  by  him  from  Kinney  previous  to 
the   foreclosure. 

An  examination  of  these  facts  will  show 
that  at  no  time  has  there  been  unity  of  own- 
ership of  the  land  and  the  machinery  put 
into  the  building.  Kaufman  at  the  out.set 
owned  the  one  without  having  an  interest 
in  the  other,  and  no  one  of  the  parties  who 
subsequently  acquired  an  interest  had  a 
right  in  the  land  co-extensive  with  his  in- 
terest in  the  machinery.  All  the  time,  there- 
fore, the  parties  have  had  title  to  the  ma- 
chinery distinct  from  their  title  to  the  laud, 


and  this  fact  of  itself  is  conclusive  that  the 
former  was  personalty.  For,  to  constitute 
a  fixture,  there  must  not  only  be  physical 
annexation  in  some  form  to  the  realty,  but 
there  must  be  unity  of  title,  so  that  a  con- 
veyance of  the  realty  would  of  necessity 
convey  the  fixture  also.  When  the  owner- 
ship of  the  land  is  in  one  person,  and  of  the 
thing  aflixed  to  it  is  another,  and  in  its  na- 
ture is  capable  of  severance  without  injury 
to  the  former,  the  latter  cannot,  in  contem- 
plation of  law,  become  a  part  of  the  former, 
but  must  necessarily  remain  distinct  prop- 
erty, to  be  used  and  dealt  with  as  personal 
estate  only.  And  the  fact  that  the  owner 
of  the  thing  affixed  to  the  freehold  has  also 
an  undivided  interest  in  the  latter,  cannot 
render  the  former  a  fixture  when  the  inter- 
ests are  different  in  extent.  A  thing  can- 
not, as  to  an  undivided  interest  therein,  be 
real  estate,  and  as  to  another  undivided  in- 
terest, be  personalty;  it  must  be  the  one 
thing  or  the  other.  And  the  position  whicli 
is  taken  by  Lee  in  this  case  involves  this 
absurdity;  that  Kaufman,  at  the  time  when 
he  and  Kinney  were  severally  the  owners  of 
an  undivided  half  of  the  land,  might  have 
sold  that,  and,  as  a  necessary  consequence, 
transferred  an  undivided  one-half  of  the 
machinery  also,  though  the  whole  of  the 
machinery  belonged  to  Kinney  as  exclusive 
owner.  This  would  be  the  necessary  result 
if  the  machinery  was  real  estate,  for  there 
could  be  no  such  a  thing  as  attaching  it  to 
an  divided  interest  in  the  land  only. 

Lee  claims,  however,  that,  if  the  machin- 
ery continued  to  be  personal  estate  after  be- 
ing put  up  in  the  building.  Adams  was  nev- 
ertheless a  wrong-doer  in  taking  it  out  of 
the  building,  because  if  personalty,  the  title 
to  it  was  never  transferred  by  any  of  the 
conveyances  of  interests  in  the  land.  And, 
to  take  advantage  of  this  view,  he  has  ob- 
tained assignments  from  Kaufman  and 
Hardy  of  any  right  of  action  they,  as  own- 
ers of  the  machinery,  might  have  against 
Adams  for  taking  it  away.  These  assign- 
ments bear  date  in  October,  1873.  But  it 
clearly  appears  that  Kaufman  sold  his  right 
in  the  machinery  to  Kinney,  and  it  is  equal- 
ly apparent  that  Hardy  did  the  same  thing. 
The  failure  to  mention  the  machinery  in  the 
deeds  of  conveyance  was  of  no  importance; 
no  writing  was  requisite  to  transfer  the 
title  to  this,  any  more  than  to  any  other 
personalty. 

This  view  of  the  case  renders  it  necessary 
to  consider  whether  Lee,  on  his  own  theory 
of  the  case,  had  any  cause  of  action,  the 
machinery  having  been  taken  off  the  prem- 
ises before  he  became  purchaser  at  the  fore- 
closure sale.  His  position  relatively  to  the 
mortgage  and  the  mortgaged  premises  was 
peculiar,   but  the  facts  become  immaterial. 

The  judgment  must  be  reversed,  with 
costs,  and  a  new  trial  ordered. 

CAMPBELL,  J.,  and  GRAVES,  C.  J.,  con- 
curred. 


36 


CHATTELS  PERSONAL. 


GILLET  V.  MASON. 

(7  Johns.  16.) 

Supreme  Court  of  New  York.      1810. 

Error  on  certiorari  from  justice's  court. 

Mason  declared  against  Gillet,  before  the 
justice,  in  an  action  of  trespass,  for  cutting 
down  a  tree  containing  a  swarm  of  bees  and 
honey,  which  the  phiintiff  below  had  before 
found,  and  had  marked  the  tree  with  the  in- 
itials of  his  name. 

Gillet  pleaded  the  general  issue,  and  there 
was  a  trial  by  jury. 

Mason  proved  that  previous  to  bringing  this 
suit  he  had  found  a  tree  containing  a  swarm 
of  bees  standing  on  the  laud  of  Timothy  Gil- 
let, lately  deceased,  father  of  the  defendant; 
that  he  marked  the  tree  with  the  initials  of 
his  name,  "A.  M.";  that  the  defendant  had 
cut  down  the  tree,  and  taken  and  carried 
away  the  bees  and  honey;  and  that  the  tree 
contained  a  large  swarm  of  bees  and  a  large 
quantity  of  honey,  of  the  value  of  $10.  It 
was  admitted  by  the  plaintiff  that  the  land 
where  the  tree  stood  belonged  to  Timothy 
Gillet,  but  it  was  denied  that  the  defendant 
was  his  heir,  or  had  any  possession  of  the 
land.  It  was  admitted  that  defendant  was  a 
son  of  Timothy  Gillet.  The  justice,  in  char- 
ging the  jury,  put  the  cause  on  the  point, 
Avhich  of  the  parties  first  reclaimed  the  bees 
from  a  wild  state;  and  the  juiy  found  a  ver- 
dict for  the  plaintiff  below,  for  nine  dollars. 


PER  CURIAM.  Bees  are  considered  by 
Judge  Blackstone  (2  Comm.  392)  as  ferrr 
natura?;  but,  when  hived  and  reclaimed,  a 
qualitied  property  may  be  acquired  in  them. 
Occupation  of  them,  according  to  Bracton 
(that  is,  having  or  inclosing  them)  gives  the 
property  in  bees.  In  the  present  case  it  ap- 
pears the  bees  were  not  hived  before  they 
were  discovered  by  the  defendant  in  error, 
and  the  only  act  he  did  was  to  mark  the  tree. 
The  land  was  not  his,  nor  was  it  in  his  pos- 
session. Marking  the  tree  did  not  reclaim 
the  bees,  nor  vest  an  exclusive  right  of  prop- 
erty in  the  finder,  especially  in  this  case, 
against  the  plaintiff  in  error,  who,  as  one  of 
the  children  of  Timothy  Gillet  (who  does  not 
appear  to  have  made  a  will),  must  be  consid- 
ered as  one  of  the  heirs,  and,  as  such,  a  tenant 
in  common  in  the  land.  Blackstone  (volume 
2,  p.  393)  inclines  to  the  opinion  that  under 
the  charter  of  the  forest,  allowing  every  free- 
man to  be  entitled  to  the  honey  found  within 
his  woods,  a  qualified  property  may  be  had  in 
bees,  in  consideration  of  the  soil  whereon 
they  are  found,  or  an  ownership,  ratione  soli. 
According  to  the  civil  law  (Just.  Inst.  lib.  2. 
tit.  1,  §  14),  bees  which  swarm  upon  a  tree 
are  not  private  property,  until  actually  hived; 
and  he  who  first  incloses  them  in  a  hive  be- 
comes their  proprietor. 

Judgment  reversed. 

See  Ferguson  v.  Miller,  1  Cow.  243. 


ANIMATE  PERSONALTY. 


37 


ADAMS  V.   BURTON   et  al. 

(43  Vt.  36.) 

Supreme    Court    of    Vermont.     Windsor.     Feb. 
Term,   1870. 

Trespass  and  case.  Plea,  not  guilty  and 
notice.  Trial  bj'  the  Court,  December 
term,  1869,  Barrett,  J.,  presiding.  It  ap- 
peared that  early  in  August,  1868,  the 
plaintiff  tracked  and  found  a  swarm  of 
bees  in  a  tree  growing  on  the  land  of  Ira 
Burton  in  Norwich;  and  in  a  few  days  in- 
formed said  Ira  of  the  fact,  and  that  he  in- 
tended to  cut  down  the  tree  and  get  the 
honey,— to  which  said  Ira  made  no  objec- 
tion,—he  supposingthat  thefinderofa  bee 
tree,  on  the  land  of  another,  had  a  right  to 
take  the  bees  and  the  honey  ;  and  he  so  said 
to  the  plaintiff.  It  did  not  appear  whether 
he  would  have  made  objection  if  he  had 
not  so  supposed.  He  made  no  claim  in  re- 
spect to  the  boesor  the  honej'  that  might 
be  in  the  tree;  and  though  he  was  given 
by  plaintiff  to  understand  in  what  region 
on  his  land  the  supposed  bee  tree  was,  he 
did  not  know  in  what  tree  the  plaintiff 
supi)osed  the  bees  were.  A  day  or  two 
after  this,  and  early  in  the  morning  of  the 
3d  of  August,  1S68,  the  plaintiff,  with 
Pineo  to  help  him,  went  to  the  tree,  and 
they  were  in  the  process  of  chopping  it 
down,  for  the  purpose  of  getting  the  honey, 
claiming  the  right  to  doit,  when  the  defend- 
ant, Henry  Burton,  with  the  defendant 
Thompson,  acting  for  and  under  him,  hav- 
ing heard  that  the  plaintiff  had  found  a 
bee  tree  in  that  vicinity,  were  out  trying 
to  find  it,  for  the  purpose  of  cutting  it 
down  and  getting  the  honey.  They  saw 
the  plaintiff  and  Pineo  at  work  chopping 
the  tree;  whereupon  they  went  to  the  tree, 
knowing  the  claim  of  right,  on  the  part  of 
the  plaintiff,  and  the  defendant  Bur- 
*37  ton  interposed  himself  in  such  a  *way 
as  to  prevent  the  plaintiff  from  chop- 
ping more  upon  the  tree,  and  to  cause  him 
and  I'ineo  to  give  up  the  attempt  further 
to  cut  it  down.  And  said  Burton  proceed- 
ed at  once — with  Thoinoson  heliiing  him — 
to  finish  the  work  that  the  plaintiff  and 
Pineo  had  begun,  of  chop|)ing  it  down. 
And  they  found  the  supi)osed  swai-m  of 
bees  in  it,  and  150  lbs.  of  honey;  which 
honey  they  took  and  carried  awa^'.  and 
the  said  defendant  Burton  used  it  for  his 
own  purposes.  The  defendant  Burton, 
after  hearing  that  the  plaintiff  had  found 
a  bee  tree  in  that  vicinity,  and  desiring 
and  intending  to  cut  it  down  and  get  the 
honey,  if  he  could  find  it,  told  his  brother, 
the  said  Ira,  of  his  desire  and  intention, 
just  before  he  went  out  as  aforesaid  to 
try  to  find  the  tree, — and  said  Ira  ex- 
pressed consent  that  lie  might  do  so,  said 
Ira  not  interesting  himself  in  any  way  in 
the  matter,  by  claim  or  otherwise  in  his 
own  behalf,  or  as  between  the  plaintiff 
and  the  defendant  Burton,  and  knowing 
that  the  plaintiff  supposed  that  he,  the 
plaintiff,  had  a  right  to  get  the  honey,  by 
reason  of  having  tracked  the  bees  and 
found  the  tree.  The  court  i-endered  judg- 
ment for  the  plaintiff  for  $32.40  and  his 
costs.     To  this  the  defendants  excepted. 

S.E.  &  S.  M.  I'inffroe,  for  the  defendants. 

C.  M.  Lamb,  for  the  plaintiff. 


The  opinion  of  the  court  was  delivered  by 

PIERPOINT.C.  J.  It  appears  from  the 
facts  found  by  the  county  court,  that  in 
August,lS6S,  the  plaintiff  traced  and  found 
a  swarm  of  bees  in  a  tree  standing  upon 
the  land  of  one  Ira  Burton;  that  soon 
after  he  informed  said  Ira  of  the  fact,  and 
told  him  he  intended  to  cut  down  the  tree 
and  get  the  honey;  that  said  Ira  niade  no 
objection  to  his  doing  so;  set  up  no  claim 
to  the  l)ees  or  the  honey,  but  told  the 
plaintiff  he  supjjosed  he  had  the  right  to 
cut  the  tree  and  take  the  honey.  Whether 
this  can  be  regarded  strictly  as  a  license 
or  not,it  wasclearly  a  waiver  of  any  right 
he  had  in  the  matter,  as  the  owner  of  the 
tree,  and  was  sufficient  to  w^arraiit  the 
plaintiff  in  going  on  and  cutting  the 
*38  tree,  without  making  himself  *a  tres- 
passer thereby.  After  this  the  defend- 
ant, learningthat  the  plaintiff  had  found  a 
"bee  tree"  on  the  said  Ira's  land,  but  not 
knowing  the  precise  locality  of  it,  went  to 
the  said  Ira  and  told  him  he  intended 
to  find  the  said  tree  and  cut  it  down  and 
get  the  honej',  and  this  the  said  Ira  con- 
sented to.  This  again  was  a  waiver  of  the 
right  of  the  said  Ira  in  favor  of  the  defend- 
ant— thus  virtually  placing  the  plaintiff 
and  the  defetfdant  upon  the  same  footing 
so  far  as  the  I'ights  of  the  said  Ira,  as  thd 
owner  of  the  tree,  were  concerned.  In  as- 
senting to  the  proposition  of  the  defend- 
ant, there  was  no  attempt  to  revoke  or 
interfere  with  any  authority  or  right  that 
the  ijlaintiff  had,  eitlier  as  the  disc(n  t-rcr, 
or  as  derived  from  the  said  Ira,  to  cut  the 
tree  and  take  the  honey,  and  we  think 
there  would  be  no  such  legal  effect  result- 
ing therefrom.  This  beingso,  these  parties 
stand,  as  between  themselves,  and  as  re- 
spects the  legal  principles  applicable  to 
the  case,  in  precisely  the  same  position,  as 
though  neither  li;i  '  any  authority  from 
the  owner  of  the  trtv,  and  both  were  tres- 
passers uponhis  rights, or  as  though  there 
was  noindividual  ownerof  the  tree.  How 
then  would  the  case  stand.  No  principle 
is  better  settled,  than  that  a  person  in 
po.ssessiou  of  property,  can  maintain  tres- 
pass against  any  one  that  interferes  with 
such  possession,  who  cannot  show  a  bet- 
ter right,  or  title. 

In  this  case,  the  plaintiff  first  found  the 
bee  tree;  he  thus  acijuired  all  the  rights 
that  appertain  to  the  person  who  first  dis- 
covered the  home  of  the  bees,  whatever 
those  rights  may  be.  He  proceeded  to 
take  possession  of  the  tree,  for  the  purpose 
of  removing  the  honey,  and  when  the  de- 
fendants interfered  with  him,  he  was  in 
the  act  of  cutting  the  tree;  he  literally 
hfid  his  hand  upon  the  hive;  he  was  as 
much  in  possession  as  he  would  have  been 
if  he  had  cut  the  tree  down,  and  had  been 
in  the  act  of  removing  the  honey  from  its 
place  of  deposit,  and  the  honey  as  certain- 
ly secured  ;  the  honey  is  all  that  is  sought 
in  such  cases,  and  all  that  is  of  value,  as 
the  bees  cannot  be  secured  ;  the  operator 
would  much  [u-efer  to  have  them  leave,  as 
they  alwaj's  riiakea  vigorous  defense  of  the 
homestead,  and  those  who  thus  rob  the 
bees  of  their  treasure  generally  have  other 
stings  to  endure  than  those  of  conscience. 


38                                                    CHATTELS  PERSONAL 

In  this  case  the  defendants  not  only  robbed  'having   no  superior  right  to  the  plaintiff, 

the    bees,    the     penalty    for    which  thereby  making  themselves  liable  to   him 

*tliey   doiabtless   paid   at   the     time,      *89  for  the  damage. 

but  they  also  robbed  the  plaintiff   of  The  county  court  having  ascertained  the 

his  rights.     The.v  drove  him   from  the  act-  damage  and  rendered  a  judgment  therefor, 

ual  possession  of  the  properly,  and   seized  that  judgment  must  be  affirmed. 

and  appropriated  it  to  their  own  use,  they  Judgment  affirmed. 


ANIMATE  PERSONALTY 


39 


TENHOPEN  V.  WALKER. 

(55  N.  W.  657,  96  Mich.  236.) 
Supreme   Court   of   Michigan.    June  23.   1893. 

Error  to  circuit  court, Kent  county;  William 
E.  Grove,  Judge. 

Action  by  Margaret  Tenliopen  against 
Thomas  Walker.  Judgment  for  plaintiff. 
Defendant  brings  error.    Affirmed. 

Dunham  &  Preston,  for  appellant.  Francis 
A.  Stace,  for  appellee. 

LONG,  J.  Plaintiff  recovered  judgment 
against  the  defendant  for  $225,  as  damages 
in  an  action  on  the  case  for  the  malicious 
killing  of  her  dog.  It  was  shown  on  the  trial 
that  plaintiff's  sons  were  waltmg  along  the 
highway.  They  were  accompanied,  by  the 
plaintiff's  dog  and  two  other  dogs.  Vvuen  in 
front  of  defendant's  premises,  the  dog  of 
plaintiff  turned  into  the  defendant's  grounds, 
just  out  of  the  highway,  and  approached  a 
pond  which  was  kept  for  lUies,  apparently 
with  the  Intent  to  slake  its  thirst.  Defend- 
ant, seeing  it  from  the  upper  window  of  his 
house,  went  down  into  the  lower  haU,  got 
his  gun,  and,  returning  above,  shot  the  dog 
from  the  upper  window.  It  is  not  claimed 
that  this  dog  had  done  any  damage  there  at 
that  or  at  any  other  time.  On  the  trial  the 
court  permitted  the  defendant  to  show  that 
upon  several  previous  occasions  other  dogs 
had  wallowed  In  this  pond,  destroying  some 
of  the  plants  there  growing,  and  upon  one 
occasion  the  owner  of  the  dog,  when  remon- 
strated with  by  defendant,  had  called  him 
vile  names,  and  otherwise  insulted  and 
abused  him.  There  was  no  fence  in  front 
of  the  premises,  and  this  pond  laid  open  to 
the  highway. 

At  the  close  of  the  testimony,  counsel  for 
defendant  asked  the  court  to  instruct  the 
jxiry:  "(3)  If  the  court  shall  hold  that  this 
action  can  be  maintained  upon  the  facts  dis- 
closed m.  the  plaintiff's  declaration,  then  we 
ask  the  court  to  charge  the  jury  that,  in 
order  to  recover  m  this  action,  the  plaintiff 
must  show  to  the  satisfaction  of  the  jury 
that  the  defendant  was  moved  to  kiU  the 
dog  through  malice,  either  towards  the  dog 
or  towards  the  plaintiff  herself;  that  this 
must  be  shown  by  declarations  of  the  defend- 
ant made  before  or  at  the  time,  showing  a 
wicked  and  malicious  purpose  for  such  facts 
and  circvunstances  as  naturally  and  logically 
lead  to  the  conclusion  that  the  defendant 
was  actuated  by  malice,  by  ill  wHl,  hatred, 
or  a  desire  for  revenge.  (4)  K  the  jury  find 
from  the  evidence  that  the  dog  was  com- 
mittmg  a  trespass  upon  the  proi>erty  of  the 
defendant,  and  In  shooting  the  dog  the  de- 
fendant was  only  seeking  to  prevent  injury 
to  his  property,  then  there  was  no  malice  on 
his  part,  and  plaintiff  cannot  recover.  (5)  If 
the  jury  find  that  the  plaintiff  is  entitled 
to  recover,  then,  in  estimating  the  damages, 
they  can  only  find  the  fair  market  value  of 


the  dog.  (6)  In  examining  and  weighing  the 
testimony  of  the  witnesses  as  to  the  value 
of  the  dog,  they  should  scrutinize  it  closely, 
and  see  upon  what  knowledge  they  base 
their  opinion;  that  mere  opinions,  not  based 
upon  a  knowledge  of  the  character  and 
qualities  of  the  dog,  are  not  evidence  of  his 
value;  that  statements  of  witnesses  of  the 
market  value  of  the  dog  in  question,  or  of 
such  dogs,  who  have  never  dealt  in  such  dogs, 
nor  ever  known  personally  of  dealings  by 
others  ought  not  to  be  received,  except  with 
great  caution."  These  instnictions  were  re- 
fused, and  the  court  directed  the  jury  sub- 
stantially that  the  plaintiff  was  entitled  to 
recover  actual  damages,  which  would  con- 
sist of  the  value  of  the  dog  at  the  time  it 
was  killed;  and  that,  even  if  the  dog  was 
committing  a  trespass  at  the  time  it  was 
killed,  and,  in  the  opinion  of  the  defendant, 
was  about  to  destroj'  some  of  his  plants,  it 
would  not  be  a  justification  for  the  kUhng, 
or  In  any  way  mitigate  actual  damages,  be- 
cause the  law  affords  a  remedy  for  the  de- 
struction of  property  caused  by  the  beasts 
of  another.  The  court  further  directed  the 
jury  that  there  were  but  two  questions  for 
them  to  consider:  (1)  The  value  of  the  dog. 
(2)  Was  there  malice?  Upon  the  last  propo- 
sition the  court  directed  the  jury:  "If  you 
find  from  the  evidence  that  there  was  malice, 
and  that  these  annoyances  that  I  have  men- 
tioned did  take  place,  you  vrill  consider  these 
annoyances  and  those  previous  trespassi>s 
with  a  view  of  determining,  in  the  first  place, 
whether  they  fully  rebut  the  claim  of  malice, 
whether  they  afforded  an  excuse  or  cause 
for  killing  the  dog.  to  the  extent  that  it  would 
take  away  the  malice;  and.  If  you  find  in  the 
negative  upon  that  question,  you  are  at  Ub- 
erty  to  consider  them." 

It  was  claimed  on  the  part  of  the  plain- 
tiff that,  if  the  jury  found  that  the  killing  of 
the  dog  was  willful  and  malicious,  the  plain- 
tiff, in  addition  to  actual  damages,  was  en- 
titled to  recover  exemplary  damages.  Upon 
this  portion  the  court  directed  the  jury  sub- 
stantially that,  while  actual  damages  could 
not  be  mitigated  by  the  fact  that  defendant 
had  theretofore  been  annoyed  by  other  dogs, 
yet,  if  they  found  he  had  been  so  annoyed, 
or  if  he  believed  at  the  time  that  the  plain- 
tiff's dog  was  actually  in  the  act  of  destroy- 
ing some  of  his  property,  they  might  con- 
sider whether  those  facts  could  entirely  re- 
but malice;  and  if,  notwithstanding  those 
facts  might  be  found  to  exist,  they  believed 
that  defendant  was  actuated  by  malice,  they 
might  even  then  award  exemplary  damages; 
for.  If  the  defendant  willfully  and  maUcious- 
ly  did  the  killing,  exemplary  damages  would 
be  recoverable.  We  see  no  error  in  the 
charge.  The  testimony  tended  to  show  that 
the  dog  was  valuable.  It  was  a  '"Gordon 
setter."  eligible  to  registration,  and  some  of 
the  witnesses  placed  the  value  as  high  as 
$250.  It  had  never,  so  far  as  this  record 
shows,  trespassed  upon  the  defendant's 
premises,   nor  had  he  in   any   manner  been 


40 


CHATTELS  PERSONAL. 


annoyed  by  it.  On  the  day  it  was  shot,  it 
ran  a  few  feet  out  of  the  hij::hway  to  tlie 
edjie  of  this  lily  pond,  between  which  and 
the  highway  there  was  no  fence,  and,  imme- 
diately as  it  reached  the  pond,  defendant, 
without  any  AAarnins  to  the  boys  who  had 
it  in  charge,  shot  and  killed  it.  The  jui-y, 
under  tie  charpe  as  given,  may  or  may  not 
have  found  that  the  dog  was  killed  willfully 
and  maliciously,  as  the  amount  of  the  verdict 
is  less  than  several  of  the  witnesses  placed 
its  value;  but  there  certainly  was  evidence 
which  woidd  have  .iustifietl  the  jury  in 
finding  the  act  willfiU  and  malicious.  The 
dog  was  not  running  at  large,  contrary  to 
law,  but  was  in  the  immediate  charge  of  its 
keeper.  It  is  settled  in  this  state  that  dogs" 
have  value,  and  are  the  property  of  the  own- 
er as  much  as  any  other  animal  which  one 
may  have  or  keep.  Heisrodt  v.  Hackott,  34 
Mich.  283.  Usually,  where  an  act  is  done 
with  design,  and  from  willful  and  mali- 
cious motives,  the  law  compels  full  compen- 
sation, and  full  compensation  may  not  be 
awarded  by  the  payment  of  the  actual  value. 
Damages  in  excess  of  the  real  injury  are 
never  appropriate  where  the  injury  has  pro- 
ceeded from  misfortune,  rather  than  from 
any  blamablo  act;  but,  where  the  act  or 
trespass  complained  of  arises  from  willful 
and  malicious  conduct,  exemplary  damages 
are  recoverable.  These  damages  are  not 
awarded  as  a  punishment  to  the  wi"ong- 
doer,  but  to  compensate  the  injured  party. 
Wetherbee  v.  Green,  22  Mich.  ?11. 

All  redress  in  damages  partakes  to  some 
extent  of  a  pumtorj'  character,  and  the  line 
between  "actual"  and  what  are  called  "ex- 
emplary" damages  cannot  be  drawn  with 
much  nicety.  They  are  properly  based  upon 
all  the  circumstances  of  the  aggi'avation  at- 
tending it.  The  real  purpose  is  to  compen- 
sate the  plaintiff  for  the  injuries  he  has 
suffered.  Stilson  v.  Gibbs,  53  Mich.  2S0,  18 
N.  W.  Kep.  815;  Wilson  v.  Bo  wen,  64 
Mich.  133,  31  N.  W.  Rep.  81.  It  was  said 
by  Mr.  Justice  Cooley,  in  Stilson  v.  Gibbs, 
supra:  "In  some  cases  there  may  be  a  par- 
tial estimate  of  damages  by  a  money  stand- 
ard; but  the  invasion  of  the  plaintiff's  rights 


has  been  accompanied  by  circumstances  of 
peculiar  aggravation,  which  are  calculated 
to  vex  and  annoy  the  plaintiff,  and  cause 
him  to  suffer  much  beyond  what  he  would 
suffer  from  the  pwuniary  loss.  Here  it  is 
manifestly  proper  that  the  jury  should  es- 
timate the  damages  with  the  aggravating 
circumstances  in  mind,  and  that  they  should 
endeavor  fairly  to  compensate  the  plaintiff 
for  the  wrong  he  has  suffered.  The  compen- 
sation to  the  plaintiff  is  the  purpose  in  view, 
and  any  instruction  which  is  calculated  to 
lead  till'  jury  to  suppose  that,  besides  com- 
pensating the  plaintiff,  they  may  punish  the 
defendant,  is  erroneous."  In  the  present 
case,  the  court  below  submitted  to  the  jury 
the  question  whether  the  defendant  was  ac- 
tiiated  by  malice,  and  was  guilty  of  willful 
conduct  in  shooting  the  dog.  The  rights  ot 
the  defendant  were  fully  protectcxl,  as  all 
the  circtimstances  prior  to  the  commission  of 
the  act  were  permitted  to  be  put  in  by  the 
defendant,  showing  the  annoyances  he  had 
had  from  other  dogs,  and  the  provoldng  and 
Insolent  conduct  of  the  owners  of  the  other 
dogs  when  remonstrated  with  by  him.  The 
jury  found  that  these  facts  did  not  consti- 
tute an  excuse  for  killing  the  plaintiff's 
dog,  and,  we  think,  very  properly.  In  cases 
of  maUcious  injury,  it  is  not  necessary  that 
there  should  be  actual  enmity  towards  the 
pei-son  injured.  Brown  v.  State,  26  Ohio  St. 
176.  In  Wright  v.  Clark,  50  Vt  130,  it  ap- 
peared that  plaintiff's  dog  drove  a  fox  upon 
the  land  of  defendant's  father.  Defendant 
came  up  and  shot  the  dog.  On  the  trial  he 
claimed  that  he  was  shooting  at  the  fox,  and 
accidentally  shot  the  dog.  No  enmity  appear- 
ed to  have  existed  between  the  parties.  The 
court  charged  that,  if  the  defendant  inten- 
tionally and  wantonly  shot  the  dog,  they 
might  give  exemplary  damages.  It  was  held 
that  such  intentional  and  wanton  shooting 
implied  malice,  and  that  the  instructions 
given  were  correct  Some  other  errors  are 
claimed.  We  have  examined  them,  and  do 
[  not  deem  them  of  sufficient  importance  to 
j  notice,  and  they  are  overnUed.  Judgment 
j  atfirmed,  with  costs.  The  other  justices  con- 
1  cm'red. 


ANIMATE  PERSOXALTT. 


41 


KELLOGG  V.   LOVELY. 

(8  N.  W.  699,  40  Mich.  131.) 

Supreme  Court  of  Michigan.     April  27,   18S1. 

Error  to  Shiawassee. 

McBrider  &  Eraser,  for  plaintiff  in  error. 
MeKercher  &  Bush,  for  defendant  in  error. 

GRAVES.  J.  The  circumstances  of  this 
controversy  are  as  follows.  In  October,  1878, 
the  defendant  sold  the  plaintiff  on  credit  a 
mare,  buggy  and  harness  for  the  agreed  price 
of  ^2.'>0  and  the  plaintiff  gave  his  note  togeth- 
er with  a  mortgage  on  the  property  for  the 
■entire  sum. 

The  mare  was  with  foal  and  about  the  first 
of  June  following  she  dropped  the  colt.  On 
the  first  of  July  the  mortgage  became  due, 
and  Kellogg  failing  to  pay,  Lovely  proceeded 
to  take  the  property.  There  was  no  dispute 
about  his  right  to  take  the  mare,  buggy  and 
harness,  but  the  parties  appear  to  have  dif- 
fered about  the  colt.  Lovely  maintained  that 
the  mortgage  applied  to  it  and  gave  him  the 
same  right  to  the  colt  that  it  did  to  the  mare, 
but  Kellogg  contested  this  claim  and  contend- 
ed that  the  colt  being  the  offspring  of  the 
mare  was  his  property  and  not  having  been 
liorn  when  the  mare  was  purchased  and  the 
mortgage  given  was  not  subject  to  the  mort- 
gage. 

The  colt  had  not  been  weaned  and  was 
running  with  the  mare  and  when  Lovely 
drove  lier  off  the  colt  followed.  Lovely  soon 
afterwards  proceeded  to  sell  the  whole  prop- 
erty, the  colt  included,  under  the  mortgage, 
and  we  gather  from  the  case  that  it  was 
bought  in  for  him  through  an  agent.  The 
whole  sum  for  which  the  property  was  struck 
off  was  $170,  and  shortly  afterwards  Kellogg 
paid  the  remainder  of  the  debt.  He  then  in- 
stituted replevin  against  Lovely  before  a  jus- 
tice of  the  peace  to  obtain  the  colt  and  it  was 
seized  on  the  writ  and  delivered  into  his  pos- 
session. The  justice  entered  a  npnsuit  against 
him  and  Lovely  waiving  return  of  the  colt  the 
value  was  assessed  at  $55,  for  which  Lovely 
took  judgment.  An  appeal  was  made  and  the 
circuit  court  reduced  the  assessment  to  $30 
and  awarded  Kellogg  $78  costs  and  extin- 
guished the  former  by  applying  an  equal 
amount  of  the  latter  by  way  of  set  off.  Thi're- 
upon  Kellogg  sold  the  colt  and  brought  this 
action  ot  trespass,  counting  on  the  transaction 
when  Lovely  took  the  mare  on  the  mortgage. 
The  justice  gave  judgment  in  Kellogg's  favor 
for  the  value  of  the  colt  and  Lovely  appealed. 
The  circuit  judge  ruled  that  there  was  no 
evidence  of  trespass  and  ordered  a  verdict  for 
liOvely.  It  is  not  certain  that  the  circuit 
judge  was  correct  in  the  reason  on  which  he 
proceeded.  But  whether  he  was  or  hot  is  un- 
important unless  the  result  was  wrong. 

The  fundamental  question  in  the  case  re- 
lates to  the  effect  on  the  legal  ownership  of 
the  colt,  of  the  sale  oi  the  mare  to  Kellogg 


and  the  mortgage  back.  In  respect  to  tame 
and  domestic  animals  the  general  i-ule  is  well 
understood,  that  "the  brood  belongs  to  the 
owner  of  the  dam  or  mother"  (2  Bl.  Comm. 
390),  but  there  are  many  cases  in  which  the 
rule  is  qualified  in  its  application.  It  has 
been  held  and  may  be  true  in  special  cases 
that  where  the  female  is  hired  for  a  time  limit- 
ed and  has  increase  during  the  term  the  hirer 
will  be  entitled  to  it  and  not  the  general  own- 
er. 2  Kent,  Comm.  301;  Edw.  Bills.  §  •i<J2; 
Putnam  v.  Wyley,  8  Johns.  432;  Concklin  v. 
Havens,  12  Johns.  314;  Hamson  v.  Millett,  oo 
X.  H.  184;  Stewart  v.  Ball,  33  Miss.  1.54. 
And  so  too  it  was  decided  in  Linnendoll  v. 
Terhune,  that  a  foal  obtained  under  an  agree- 
ment by  which  the  owner  of  the  mare  ar- 
ranged with  another  person  that  if  he  would 
put  her  to  horse  and  pay  the  expense  he  should 
have  the  foal,  became  the  property  of  such 
person.     14  Johns.  222. 

It  is  also  laid  down  by  Judge  Story  that 
where  a  thing  is  pledged  its  natural  increase 
as  accessory  is  also  pledged,  and  he  gives  by 
way  of  illustration  the  case  where  a  flock  of 
sheep  are  pledged,  and  observes  that  the 
young  afterwards  born,  are  also  pledged. 
Bailment,  §  292;  aJid  see  Domat,  part  1,  bk.  3, 
tit.  1,  §  1,  art.  7;  Kauf.  Mackeldy,  book  1,  §  207. 
In  Iowa  and  Kentucky,  and  probably  in  other 
states,  it  has  been  divided  that  the  young  of 
animals  under  mortgage  are  subject  to  the 
mortgage  (Forman  v.  Proctor,  9  B.  Mon.  124; 
Thorpe  v.  Cowles,  7  N.  W.  077,  3  Iowa,  049) ; 
and  no  cases  to  the  contrary  have  been  dis- 
covered. Perliaps  these  last  decisions  may 
have  originated  in  the  doctrine  that  the  mort- 
gagee of  chattels  is  the  legal  owner;  and  the 
courts  may  have  considered  that  in  holding 
the  young  of  mortgaged  animals  to  be  subject 
to  the  mortgage,  they  were  only  applying  the 
general  rule  which  assigns  the  increase  to 
the  owner  of  the  mother.  But  it  is  useless  to 
speculate  on  the  subject. 

The  case  before  the  court  belongs  to  a  pe- 
culiar and  exceptional  class,  and  it  may  be. 
disix)sed  of  without  bringing  into  question 
the  general  doctrine.  As  previously  stated, 
the  mare  was  carrying  her  colt  when  Lovely 
sold  her,  and  the  plaintiff,  not  paying  any- 
thing whatever,  gave  back  at  the  same  mo- 
ment a  chattel  mortgage  for  the  entire  price. 
There  was  no  interval  of  time  between  the 
sale  and  mortgage.  Each  took  effect  at  the 
same  instant.  The  whole  was  substantially 
one  transjiction.  Now  it  is  a  rule  of  natural 
justice  that  one  who  has  gotten  the  property 
of  another  ought  not  as  between  them  to  be 
allowed  to  keep  any  part  of  its  present  na- 
tural incidents  or  accessories  without  pay- 
ment, and  that  the  party  entitled  should  have 
the  right  to  regard  the  whole  as  being  subject 
to  his  claim.  The  one  ought  not  to  suffer 
loss,  nor  the  other  effect  a  gain,  through  a 
mere  shuffle,  and  whatever  fairly  belongs  to 
the  thing  in  question,  as  the  young  the  dam 
is  carrying,   belongs   to  her,   ought  to  be  aa 


42 


CHATTELS  PERSONAL. 


fully  bound  as  the  tiling  itself,  unless  indeed 
there  are  cix-cumstances  which  imply  a  dif- 
ferent intention. 

it  is  not  unreasonable  to  construe  the  act 
of  these  parties  by  these  principles  and  to 
consider  that  when  Lovely  sold  the  mare  with- 
out receiving  anything  down  and  Kellogg  gave 
back  the  mortgage  for  the  whole  purchase 
price  to  be  due  before  the  colt  according  to 
the  ordinai-y  course  of  things  would  be  old 
enough  to  be  separated  from  the  mare,  it  op- 
erated as  well  to  hold  the  colt  as  to  hold  the 


mare  herself.  The  intendment  is  a  fair  and 
just  one  that  the  security  was  to  be  so  far 
beneficial  to  Lovely  as  to  preserve  to  him  the 
right  to  claim  at  the  maturity  of  the  mortgage 
the  same  property  he  would  have  had  in  case 
he  had  made  no  sale.  According  to  this  view 
there  was  the  same  right  to  the  colt  as  to 
the  mare,  and  the  act  of  seizure  sued  for  was 
not  a  trespass.  The  result  ordered  by  the 
circuit  judge  was  therefore  correct  and  the 
judgment  must  be  affinned  with  costs. 
(The  other  justices  concurred.) 


JOINT  OWNERS  OF  PERSONALTY. 


43 


WAIT  T.  BOVEE. 

(35  Mich.  42.5.) 

Supreme   Court   of  Michigan.     Jan.    16,   1S77. 

The  plaintiffs  in  error  are  the  heirs  at  law 
of  Justin  Wait,  deceased,  and  the  adminis- 
trator of  his  estate;  and  defendant  in  error 
is  administrator  of  the  estate  of  Julia  Wait, 
the  wife  of  said  Justin  Wait.  The  facts  are 
sufficiently  stated  in  the  opinion. 

E.  G.  Fuller,  for  plaintiffs  in  error.  N.  P. 
Loveridge  and  Upson  &  Thompson,  for  de- 
fendant in  error. 

GRAVES,  J.  This  controversj-  is  between 
the  estate  of  the  hu.sh^ind  on  the  one  hand 
and  that  of  the  wife  on  the  other,  and  it 
presents  a  single  question. 

At  the  time  of  their  intermarriage  the  de- 
cedents were  respectively  possessed  of  about 
two  thou.sand  eight  hundred  dollars,  and  each 
had  children  by  a  former  marriage. 

Their  marriage  occurred  in  1852,  and  each 
thereafter  recognized  the  separate  property 
rights  of  the  other.  They  made  investments 
jointly,  each  supplying  half  of  the  means, 
and  they  took  all  securities  in  their  joint 
names.  This  course  continued  until  March, 
1873,  when  the  husband  died.  At  this  time 
the  personalty  so  handled  and  situated  had 
swelled  to  a  considerable  amount.  No  ques- 
tion is  involved  concerning  right  to  real  es- 
tate, or  any  question  concerning  the  rights 
of  creditors.  The  point  is  confined  to  the 
right  to  this  personalty  as  between  the  two 
estates,  the  wife  also  being  now  deceased. 
On  the  part  of  her  estate  it  was  claimed  be- 
low, and  is  here,  that  in  regard  to  these  se- 
curities taken  in  the  joint  names,  the  old 
law  of  survivorship  governs,  and  that  as  she 
outlived  her  husband  she  took  the  whole. 

On  the  other  side  it  is  urged  that  no  such 
rule  now  prevails  in  this  state,  whatever  may 
have  been  the  case  formerly,  and  that  the 
law  now  recognizes  and  protects  the  property 
interests  of  husband  and  wife  in  joint  se- 
curities as  separate  and  distinct  interests 
when  particular  circumstances  do  not  exist 
to  show  a  contrary  intention  in  the  parties. 

The  judge  of  probate  ruled  against  the 
right  of  survivorship  claimed  on  behalf  of 
the  wife,  and  his  order  was  appealed  from 
to  the  circuit  court.  That  portion  of  his  order 
which  so  decreed  was  there  reversed,  and  it 
was  decided  that  by  force  of  the  law  of  sur- 
vivorship the  wife  took  the  whole.  The  con- 
clusion of  the  probate  court  was  correct,  and 
that  of  the  circuit  court  was  erroneous.  As 
the  case  stood,  the  question  was  upon  the 
bare  legal  effect  of  the  husband's  death  in 
the  lifetime  of  the  wife  upon  the  right  to  the 
securities  taken  by  them  jointly.  Our  own 
decisions  relative  to  the  rights  of  husband 
and  wife  in  case  of  united  holdings  of  real 
estate,  afford  no  argument  here.    They  were 


grounded  upcn  the  statutory  preservation  of 
the  common-law  doctrine,  and  which  originat- 
ed in  and  was  developed  by  a  policj-  not  per- 
tinent to  cases  of  taking  and  holding  of  per- 
sonal securities.  Thei-e  is  no  question  on  evi- 
dence as  to  whether  there  was  a  gift  by  the 
husband  to  the  wife,  or  a  contingent  relin- 
quishment of  right  by  one  to  the  other.  The 
case  fairly  excludes  all  considerations  of  that 
kind.  Prior  to  the  husband's  death  each  held 
an  individual  divisible  interest.  As  between 
the  two,  and  before  the  husband's  death,  the 
law  would  have  considered  that  each  owned 
an  equal  half,  and  not  that  their  respective 
interests  were  consolidated  into  an  entirety 
held  by  the  two  as  one  person.  By  the  law 
of  1846,  which  was  a  re-enactment  with  some 
change  of  the  law  of  1844,  the  estate  Mrs. 
Wait  owned  on  her  marriage  with  decedent, 
Justin  Wait,  was  kept  and  preserved  to  her 
as  her  separate  property  after  the  marriage 
to  the  "same  extent  as  before  marriage." 
Sess.  Laws  1844,  p.  77-78;  Rev.  St.  1846,  p. 
340,  §  2.").  Hence,  during  the  husband's  life- 
time, and  up  to  the  act  of  185.5,  the  marriage 
and  taking  the  securities  in  the  joint  names 
had  not  the  effect,  as  matter  of  law,  to  blend 
the  respective  interests  and  consolidate  them 
into  one. 

The  preservation  of  the  property  interest 
of  the  wife  as  something  distinct  and  sepa- 
rate is  repugnant  to  such  a  blending,  and  in- 
consistent with  the  common-law  doctrine  ad- 
vanced. 

The  act  of  1855,  which  was  passed  some 
three  years  after  the  marriage,  goes  further 
than  the  earlier  ones  in  the  same  direction. 
2  Comp.  Laws,  pp.  1477,  1478. 

She  held  her  property  interest  as  though 
she  were  sole,  and  the  bare  fact  that  the 
securities  were  taken  in  the  joint  names, 
could  no  more  change  the  holding  into  one  by 
entirety  than  it  would  if  the  parties  had  not 
been  married.  Indeed  the  tenure  was  just 
what  it  would  have  been  if  the  parties  had 
been  unmarried. 

Her  right  was  separate  and  distinguishable 
up  to  her  husband's  death,  and  under  the 
impress  of  the  statute  it  continued  so,  and 
his  right  was  therefore  necessarily  separate 
and  distinguishable  from  hers,  and  so  contin- 
ued. 

There  could  be  no  blending  so  long  as  the 
law  kept  her  right  distinct. 

The  drift  of  policy  and  opinion,  as  shown 
by  legislation  and  judicial  decisions,  is  strong- 
ly adverse  to  the  doctrine  of  taking  by  mere 
right  of  survivorship,  except  in  a  few  spe- 
cial cases,  and  it  should  not  be  applied  except 
where  the  law  in  its  favor  is  clear. 

There  must  be  a  reversal  of  the  order  of 
the  circuit  court  and  an  affirmance  of  the  or- 
der of  the  probate  court. 

The  plaintiffs  in  error  will  recover  their 
costs  of  this  court  and  of  the  circuit  court 

The  other  justices  concurred. 


44 


JOINT  OWNERS  OF  PERSONALTY. 


McLEOD  et  al.  v.   FREE  ot  al. 

(55  N.  W.  G85,  9C)  Mich.  57.) 

Supreme   Court   of    Michigan.    June   16,    1893. 

Appeal  from  circuit  court,  Kalamazoo 
county,  in  chancery;  George  M.  Buck.  Ju;lge. 

Aciioa  by  Mary  McLeod,  pei"SonaIly  anl  as 
executrix  of  the  last  will  and  testament  of 
Stephen  W.  Fraulc,  deceased,  and  Emory  S. 
Frank,  against  John  W.  Free,  as  adminis- 
trator of  the  estate  of  Abagail  Frank,  de- 
ceased, and  Henry  Frank,  impleaded  with 
Mnrsliall  Cole,  P^annino  O'Dell,  Jessie  Close, 
William  Stewart,  P^dwin  Roberts,  Ada  Cole, 
Emory  Cole,  David  H.  Lull,  Fidelia  Lull, 
Mary  Lewis,  and  Stephen  Frank,  to  reform 
a  note,  and  to  enjoin  defendant  Free  from 
taking  pf'sscssion  thereof.  Judgment  was 
renderofi  for  plaintiffs,  and  defendants  Free 
and  Henry  Fi-anlv  appeal.    Affirmed. 

E.  M.  Irish,  for  appellants.  Osborn  &  Mills, 
for  appellees. 


I.(">N(J,  J.  Stephen  W.  Frank  and  Aba- 
gail I'rank,  both  deceased,  were  husband 
and  wife.  On  December  28,  1889,  Stephen 
sold  all  bis  real  estate,  with  the  exception 
of  a  village  lot,  to  William  Stewart  and 
Edwin  Roberts,  Ms  wife  joining  in  the  deeds. 
To  secure  a  portion  of  the  purchase  money, 
notes  and  mortgages  were  taken  from  Rob- 
errs,  and  an  assignment  of  a  mortgage  and 
notofc  accompanying  from  Stewart  The 
notes  and  mortgages  and  assignment  were 
all  drawn  payable  to  Stephen  and  Abagail 
Frank.  By  the  bill  filed  in  this  case  it  is 
claimed  (1)  that  the  notes,  mortgages,  and 
assignment  were  not  prepared  in  accordance 
with  the  intention  and  understanding  of  the 
parties,  but  that  all  that  Stephen  W.  Frank 
intended  was  to  have  them  .so  drawn  that 
the  income  should  go  to  his  wife  during  her 
life  in  case  she  survived  him,  and  that  a  mis- 
take was  made  by  the  scrivener  in  making 
them  payable  to  the  parties  jointly;  (2)  that, 
if  no  mistake  was  made,  then  that  the  tranf^ 
action  was  intended  as  a  testamentaiy  dis- 
position of  the  property,  which  was  revoked 
by  the  hist  will  and  testament  of  Stephen, 
prepared  and  executed  a  few  days  after 
these  conveyances.  The  bill  prays  that 
the  mortgages,  notes,  and  assignment  may  be 
corrected  in  accordance  with  the  intent 
of  the  parties,  or  that  such  instruments  may 
be  decreed  to  have  been  made  as  a  testa- 
mentary disposition  of  the  property;  and 
that  Mr.  Free,  as  administrator  of  the  es- 
tate of  Abagail  Frank,  be  enjoined  from 
taking  po.ssession  of  such  securities  from  the 
complainant,  as  executor  of  the  estate  of 
Stephen  Frank.  On  the  hearing  below  the 
court  foimd  that  it  was  not  intended  by 
Stephen  or  imderstood  by  Abagiil  that  she 
shoxild  take  by  such  instruments  more  than 
a  life  interest  in  these  secmities,  and  that  aU 
she  did  take  was  a  life  est:Ue;  and  that 
such  sectu-ities  are  now  a  part  of  the  estate 


of  Stephen,  and  in  the  possession  of  Mary 
McLeod,  as  such  executrix.  By  this  decree 
the  defendants  were  perpetually  enjoined 
from  taking  any  proceedings  at  law  or  other- 
wise to  obtain  possession  of  these  secvuitles, 
and  the  complainant  authorized  and  directed 
to  collect  the  same  as  a  part  of  the  assets  of 
Stephen's  estate,  and  dispose  of  the  pro- 
ceeds in  accordance  with  the  terms  of  his 
will.  The  defendants  John  W.  Free,  as  ad- 
ministrator, and  Henry  Frank,  alone  app?al. 
The  bill  was  taken  as  confessed  by  all  the 
defendants,  except  those  now  appealing. 

The  contention  on  the  part  of  the  com- 
plainants is  that  the  proofs  abundantly  sus- 
tain their  position.  It  appeal's  that  on  May 
2,  1889,  Stephen  made  a  will.  This  was  prior 
to  the  sale  of  the  real  estate.  By  tlie  will 
he  devised  the  use  of  substantially  aU  the 
real  estate  to  his  wife  during  her  natural 
life.  Within  a  few  days  after  he  sold  the 
real  estate  he  directed  a  new  will  to  be  made. 
It  revokes  aU  former  wills.  At  the  time  of 
its  execution  he  had  a  small  amount  of  per- 
sonal property,— a  village  lot,  which  he  willed 
to  his  daughter  Mrs.  McLeod, — and  tlte  se- 
curities above  described.  He  gave  his  wife 
a  life  interest  in  the  village  lot,  all  his 
furniture,  etc.,  and  bequeathed  to  his  execu- 
toi-s  in  trust  the  remainder  of  his  estate,  to 
sell  and  convey  and  convert  into  money,  the 
income  of  which  was  to  be  paid  annually  to 
his  wife  so  long  as  she  lived.  His  son  Henry 
C,  upon  the  death  of  his  mother,  was  to  be 
paid  $100  in  addition  to  the  $2,000  or  $3,0fX) 
he  had  already  given  him.  Certiun  of  his 
grandchildren  living  at  his  decease  were  each 
to  receive  $100  and  his  son  Emory  S.  the 
smu  of  $2,0U0;  and  the  residue,  after  paying 
the  funeral  expenses,  for  tombstones,  etc., 
he  gave  to  his  daughter  Mrs.  McLeod  and 
his  son  Emory  S.  He  made  his  wife  and  his 
daughter  Mrs.  McLeod  executrices  of  his 
wiU.  On  February  12,  18D0,  Stephen  Frank 
died.  On  the  27th  of  that  month  Mrs.  Aba- 
gail Frank  filed  a  petition  in  the  probate 
court  for  probate  of  the  wiU,  and,  she  re- 
fusing to  act  as  executrix,  the  trust  was  as- 
sumed by  the  daughter  Mrs.  McLeod.  The 
son  Henry  receipted  for  all  that  was  his 
due  tmder  the  will.  On  June  27th  following 
Abagail  receipted  for  all  she  claimed  of  the 
personal  estate  under  the  wiU,  which 
amounted  to  $315.10.  After  this  time  the 
widow  received  the  income  from  these  se- 
curities, and,  so  far  as  appears  by  this  record, 
never  made  any  claim  that  they  or  any  paii; 
of  them  belonged  to  her.  She  died  December 
20,  1890.  These  securities  were  found  among 
the  papers  of  Stephen  W.,  and  passed  into 
the  hands  of  ^Irs.  McLeod,  as  executrix, 
and  were  treated  as  a  part  of  the  estate  of 
Stephen  until  after  the  death  of  his  widow. 
In  1891,  Henry  Frank  tiled  a  petition  in  the 
probate  court  for  the  appointment  of  an  ad- 
ministrator of  the  estate  of  his  mother,  and 
Mr.  Free  was  so  appointed.  This  proceed- 
ing was  then  commenced  to  declare  these 
secmities  as  belonging  to  the  estate  of  Aba- 


JOINT  OWNERS  OF  PERSONALTY. 


45 


gall,  claiming  that  she  took  the  absolute  title 
to  them  as  survivor  of  herself  and  her  hus- 
band, to  whom  they  were  jointly  made. 
There  is  no  controversy  in  the  case  except 
such  as  grows  out  of  these  securities,  and, 
so  far  as  appears,  no  rights  of  creditors  are 
concerned.  The  naked  question  is,  did  the 
wife  take  these  securities  at  the  death  of 
the  husband? 

The  husband  was  the  owner  of  the  land 
out  of  which  the  securities  grew.  After  they 
were  taken,  they  were  treated  as  his  in- 
dividual property  during  his  lifetime.  He 
dealt  with  them  as  such,  and  at  his  death 
disposed  of  them  by  his  will.  His  wife,  as  it 
appears,  always  regarded  thtm  as  his  prop- 
erty during  his  lifetime,  and  after  his  death 
acquiesced  in  their  being  inventoried  and 
treated  as  a  part  of  his  estate,  taking  and 
receipting  for  her  share  and  interest  in  the 
estate  as  given  her  by  the  will,  and  was  ap- 
parently satisfied  to  have  the  securities  treat- 
ed as  a  part  of  her  husband's  estate  up  to 
and  at  the  time  of  her  death.  No  one  raised 
any  question  about  it,  mitil  after  her  death, 
when  the  son  Henry  C,  who  was  given  only 
$100  by  his  father's  will,  made  the  claim 
that  the  securities  belonged  to  his  mother's 
estate.  Counsel  for  defendant  citi's  cases  in 
his  brief  where  it  has  been  held  by  this 
court  that  a  joint  deed  to  husband  and  wife 
conveyed  the  estate  to  them  by  entireties, 
and  that  the  right  of  survivorship  exists 
in  such  cases,  so  that  where  one  dies  the 
other  is  vested  with  the  whole  estate.  But 
this  doctrine  has  not  been  applied  to  mort- 
gage securities  with  such  strictness.  In  Wait 
V.  Bovee,  3.5  Mich.  42."),  it  was  said:  "The 
drift  of  policy  and  opinion,  as  shown  by 
legislative  and  judicial  decisions,  is  strongly 
adverse  to  the  doctrine  of  taking  by  mere 
right  of  survivorship,  except  in  a  few  special 


cases;  and  it  should  not  be  applied  except 
where  the  law  in  its  favor  is  clear."  In  the 
above  case  the  husband  and  wife  were  each 
possessed  of  considerable  means,  and  made 
investments  jointly,  each  supplying  half  of 
the  funds.  On  the  death  of  the  husband  the 
wife  claimed  the  whole  of  the  securities  by 
right  of  survivorship.  This  right  was  di  nied, 
and  it  was  said:  "Our  own  decisions  relative 
to  the  rights  of  husband  and  wife  in  case  of 
united  holdings  of  real  estate  afford  no  argu- 
ment here."  It  is  evident  from  the  testi'iumy 
given  by  the  complainant  in  the  present  case 
that  the  scrivener  in  drafting  the  mortgage, 
notes,  and  assignment  did  not  make  them 
in  accordance  with  the  understanding  of  the 
parties.  It  is  also  evident  from  the  testi- 
mony of  the  witnesses  that  Abagail  never 
imderstood  that  she  had  any  more  right  in 
these  securities  than  she  had  in  the  real  es- 
tate out  of  which  they  grew.  The  will  was 
made  within  two  days  after  they  were  tak- 
en, and  by  the  will  she  was  given  a  life  in- 
terest in  them.  Enuitably  they  were  a  part 
of  the  estate  of  the  husband,  and,  being  so 
treated  by  the  parties  themselves,  and  so 
understood  by  them,  they  must  now  be  so 
treated,  and  reformed  accordingly.  In  any 
event,  only  one-half  coiild  go  to  the  estate  of 
the  wife  under  the  rule  in  Wait  v.  Bovee, 
supra;  but,  under  the  facts  shown,  the  whole 
securities  must  be  treat*^  as  belonging  to 
the  estate  of  the  husband.  The  decree  of 
the  court  below  must  be  affirmed,  with  costs. 

HOOKER,  C.  J.,  and  McGRATH  and 
GRANT,  JJ.,  conciu-red, 

MOXTGO:irERY.  J.,  (dissenting.)  I  do  not 
think  that  the  evidence  justifies  the  con- 
clusion that  there  was  any  mistake  in  draft- 
ing the  note  and  mortgage. 


46 


PARTNERSHIP  ASSETS. 


BARTON  et  al.  v.  LOVEJOY  et  al. 
(57  N.  W.  93o.) 

Supreme  Court  of  Minnesota.     Feb.  1.  1894. 

Appeal  from  district  court,  Crow  Win; 
county;  G.  W.  Holland,  Judj^e. 

Action  by  A.  B.  Barton  and  Jeremiah  .1 
Howe,  partners  as  J.  J.  Howe  &  Co.,  again- 
Hannah  A.  Lovejoy,  Frank  Lovejoy,  an 
otliei*s,  to  determine  adverse  claims  to  re. 
property.  From  the  judgment  rendered 
Frank  Lovejoy  and  others  appeal.    Affirmed 

Little  &  Nunn,  for  appellants.  Leon  E 
Lum  and  Jackson  &  Atwater,  for  respond 
ents. 

BUCK,  J.    The  plaintiffs  brought    this   ac- 
tion to  determine  the  adverse  claims  of  thr 
defendants  to  certain  vacant  premises  situ 
ated   in   the   counties   of   Cass,   Itasca,   anf 
Crow  Wing,   in  this  state.    It  is  alleged   ii 
the  complaint  that  plaintiffs  are  the  owner, 
in  fee  of  such  vacant  premises,  and  they  as! 
that  the  title  be  determined  to  be  in  their; 
and  forever  quieted,  and  that  the  defendants 
and  each  of  them,  be  enjoined  and  barrer 
from  asserting  any  claim  whatever  in  or  t( 
said  lands.    The  defendants  Frank  L.  Love 
joy,  Lorin  K.  Lovejoy,  Arthur  Lovejoy,  and 
Mary  E.  Winston  answered,  and  the  other 
defendants  were  in  default.    Mary  E.  Win- 
ston, in  her  separate  answer,  alleges  that  sh- 
IS  the  owner  of  three  thirtj'-seconds  of  said 
premises,  and  the  other  three  defendants,  in 
their  answer,  claim  to  be  the  owners  in  fee 
of  three  thirty-seconds  of  the  premises.    On 
and  prior  to  Januarj'  29,  1886,  the  premises 
in  question  were  part    of    the    partnership 
property  and  assets  of  the  firm  of  J.  J.  Howe 
&  Co.,  but  at  said  time  the  legal  title  to  said 
land  was   held   as    follows:     An    undivided 
three-eighths  by  Sumner  W.  Famham,  an  un- 
divided three-eighths  by  James  A.  Lovejoy, 
and  an  \mdivided  two-eighths  by  Jeremiah  J. 
Howe,  one  of  th(>se  plaintiffs.    The  firm  of 
J.  J.  Howe  &  Co.  then  consisted  of  the  part- 
nership firms  of  Farnham  &  Lovejoy,  ovm- 
ing  a  one-sixth  interest  in  its  property  and 
business,  and  said  J.  J.   Howe,  who  owned 
a   two-eighths   interest  in   its  said   property 
and  business,   and  the  firm   of   Famham  &, 
Lovejoy  consisted  of  those  two  persons,  who 
each   owned   a  half    interest    therein,    both 
firms  being  engagc^l  in  the  lumber  business. 
Lovejoy  died  intestate  January  29,  1880,  and 
said  J.   J.   Howe  and  O.   C.   Merriman   and 
Winthrop  Young  were  the  executors  of  said 
will,   which,   by   its   terms,    authoiized    said 
executors  to  close  up  and  settle  the  said  co- 
partnership  business   of    Farnham    &   Love- 
joy, and  to  join  with  said  Faraham  in  the 
execution  of  all  contracts,  deeds,  and  mort- 
gages and  other  papers  and  instruments  that 
might  become  necessary  for  the  sale  of  the 
lands  of  said  Farnham  &  Lovejoy,  and  for 
the  doing  of  such  other  acts  as  might  be  by 
said   executors   deemed  necessary    and    ad- 
visable in  regard  to  the  business  of  said  pait- 


norship.  Tlie  will  was  diUy  probated,  and 
by  its  terms  made  the  defendants  who  have 
answered  the  devisees  of  said  James  A.  Love- 
joy. At  the  time  of  the  death  of  said  Love- 
joy his  estate  and  the  firm  of  Farnham  & 
Lovejoy  were  insolvent,  and  the  firm  of  J.  J. 
Howe  &  Co.  was  largely  in  debt.  On  thr? 
11th  day  of  May,  1887,  the  plaintiffs  entered 
into  a  partnership  under  the  firm  name  of  J.  J. 
Howe  &  Co.,  and  about  the  l.jth  day  of  May, 
1887,  said  Famham,  as  surviving  partner  of 
said  James  A.  Lovejoy,  proceeded  to  settle 
up  the  business  of  said  firm,  and  to  this  end 
he  sold  to  plaintiffs  all  the  interest  of  said 
Farnham  &  Lovejoy  in  said  firm  and  in  the 
firm  of  J.  J.  Howe  &  Co.  as  it  existed  at  the 
time  of  said  Lovojoy's  death,  and  prior  to 
the  date  of  said  sale,  for  the  sum  of  $38,000, 
and  which  sum  was  by  said  Farnham  ap- 
plied to  the  payment  of  the  debts  of  said  firm 
of  Farnham  &  Lovejoy,  and  the  premises  so 
sold  are  a  part  of  the  copartnei-ship  property 
of  J.  J.  Howe  &  Co.,  these  plaintiffs.  The 
executors  of  said  Lovejoy,  jointly  with  said 
Farnham  and  his  wife,  executed  a  deed  to 
these  plaintiffs,  in  form  conveying  to  them 
the  legal  interest  in  said  lands  held  by  said 
Farnham  «&  Lovejoy  at  the  time  of  said 
Lovejoy's  death.  The  court  below  found  as  a 
fact  that  such  sale  was  made  in  good  faith, 
for  the  best  price  obtainable,  and  for  the  best 
interest  of  said  firm  of  Faraham  &  Lovejoy. 
The  final  account  of  the  executors  was  duly 
settled  in  probate  court,  and  they  made  re- 
turn to  said  court  that  no  money  or  property 
had  been  received  by  them  from  the  assets  of 
the  firm  of  Farnham  &  Lovejoy,  as  the  same 
was  insolvent.  It  does  not  appear  that  these 
r^efendants,  or  any  of  them,  or  any  creditor, 
ever  in  probate  court  or  elsewhere  objected 
to  the  sale  made  by  Farnham  as  sm'viving 
partner  to  plaintiffs,  nor  to  the  transfer  of 
the  property  of  Farnham  &  Lovejoy  to  plain- 
tiffs. Upon  these  facts  the  court  below  found 
for  the  plaintiffs,  and  decreed  that  the  de- 
fendants had  no  right  or  title  as  against  the 
plaintiff's. 

We  are  of  the  opinion  that  the  decision  of 
the  lower  court  was  correct,  and  should  be 
affirmed.  We  shall  not  attempt  to  enter  into 
a  full  discussion  of  all  the  various  questions 
discussed  by  the  respective  counsel.  It  is 
elementary  that  where,  in  case  of  the  death 
of  a  partner,  there  is  not  enough  personal 
property  to  pay  the  firm  debts,  then  the  sur- 
viving partner  has  a  right  to  seU  the  real 
estate  of  the  firm  to  do  so.  If  he  sells  the 
real  estate  of  the  firm  for  the  purpose  of 
paying  the  firm  debts,  without  first  obtain- 
ing an  order  from  the  court,  and  makes  such 
sale  in  good  faith  and  for  a  valuable  con- 
sideration, then  such  sale  pa.sses  the  equita- 
ble title  in  the  premises  to  the  purchaser.  In 
this  case  there  does  not  appear  to  have  been 
any  bad  faith  on  the  part  of  the  smwiving 
partner,  nor  that  he  has  squandered  any  of 
the  proceeds  of  the  sale,  nor  in  any  manner 
diverted  the  consideration  received  from  the 


PARTNERSHIP  ASSETS. 


47 


just  payment  of  the  partnership  debts.  The 
property  seems  to  have  been  sold  for  its  full 
value.  The  firm  was  hopelessly  insolvent, 
and  it  was  not  only  the  right,  but  the  duty, 
of  the  surviving  partner  to  sell  enough  prop- 
erty to  pay  the  debts.  If  he  had  not  done 
this,  the  debts  could  have  been  collected  by 
due  process  of  law  if  there  were  sufficient 
assets,  and  the  same  property  applied  to- 
wards paying  the  firm  debts.  If  the  surviv- 
*ng  partner  sold  the  premises  in  good  faith, 
and,  as  the  court  below  found,  for  the  best 
price  obtainable,  no  injm-y  could  possibly 
have  resulted  to  the  defendants.  Although 
the  surviving  partner,  Farnham,  sold  the 
premises  without  an  order  of  the  court,  yet 
the  heirs  have  no  right  to  come  in  and  defeat 
the  equitable  title  which  passed  upon  the 
sale.  The  devisees  or  heirs  in  such  case  can 
be  compelled  to  convey  the  legal  title,  or,  as 
in  this  case,  the  court  properly  adjudged  and 
decreed  the  title  to  the  premises  to  be  in  the 
plaintiffs  as  against  the  defendants.  In  the 
case  of  Shanks  v.  Klein,  104  U.  S.  18,  the 
law  is  stated  thus:  "Real  estate  purchased 
with  partnei-ship  fuuds  for  partnership  piu*- 
poses,  though  the  title  be  taken  in  the  in- 
dividual name  of  one  or  both  partners,  is,  in 
equity,  treated  as  personal  property,  so  far 
as  necessary  to  pay  the  debts  of  the  partner- 
ship, and  to  adjust  the  equities  of  the  co- 
partners; and  for  this  pvu-pose,  in  case  of  the 


death  of  one  of  the  partners,  the  ^arvivor 
can  sell  the  real  estate  so  situated;  and, 
though  he  cannot  convey  the  legal  title 
which  passed  to  the  heirs  or  devisee  of  the 
deceased  partner,  his  sale  invests  the  pur- 
chaser with  the  equitable  ownership  of  the 
real  estate,  and  the  right  to  compel  a  con- 
veyance of  the  title  from  the  kin  or  devisee 
in  a  com*t  of  equity."  See,  also,  Hanson  v. 
Metcalf,  40  Minn.  25,  48  N.  W.  441.  The 
power  and  authority  which  the  law  confers 
upon  a  surviving  partner  appears  to  be  quite 
full  and  extensive  for  the  performance  of  all 
the  business  necessary  to  a  complete  settle- 
ment of  the  concern.  As  against  heirs  or 
devisees  of  the  deceased  partner,  he  has  full 
control  of  the  partnership  property.  In  this 
ease  there  does  not,  as  we  have  said,  appear 
to  have  been  bad  faith  on  the  part  of  the 
surviving  pai-tner,  and  this  statement  is 
strongly  confirmed  by  the  fact  that  the  three 
execiitors  joined  with  him  in  the  conveyance 
to  the  plaintiffs.  The  answer  does  not  al- 
lege any  fi"aud  or  bad  faith  on  the  part  of 
the  sxu-viving  partner  or  the  executors.  It 
was  his  duty  to  proceed  without  unnecessary 
delay  to  settle  the  partnership  affairs  in  the 
best  possible  manner  fc«:  all  parties  interest- 
ed. As  his  powers  were  commensurate  with 
his  position,  and  there  does  not  appear  to 
have  been  any  misconduct  upon  his  part,  the 
judgment  of  the  court  below  is  affirmed. 


48 


PARTNERSHIP  ASSETS. 


HANSON  T.   METCALF  et  al. 

•  4S  N.  W.  441.  40  Minn.  25.) 

Supreme  Court  of  Minnesota.      April  3.   1S91. 

Appeal  from  district  court.  Mocker  coun- 
tj- :  J\)WKHS.  Judge. 

P.  \V.  Locke,  L\A.  C:\wpbell  and  M.  B. 
KooD.  for  appellant.  L'ri  L.  Lamprey,  ior 
respondent. 

VANDERBURGH,  J.  The  plaintiff  is  a 
creditor  of  the  late  firm  of  AI.  .1.  Flynu  & 
Brc.a  pnrtnersliip  com  posed  <»fM..I .  Flynn, 
who  died  January  3,  1SS9,  and  the  defend- 
ant Daniel  Flynn,  and  duly  recovered  a 
jadgment  in  his  favor  for  the  amount  of 
his  claim  on  the  IStli  day  of  December, 
ISSI),  against  the  defendant  Daniel  Flynn, 
as  surviving  partner.  In  May.  ISS!},  Dan- 
iel Fl.vnn.iu  hi-scajjacity  of  surviving  part- 
ner, and  also  as  au  individual  debtor, 
claiming  to  be  insolvent,  voluntarily  made 
an  assignment  in  pursuance  of  the  insolv- 
ent law,  partnership  property  in  his  hands 
having  been  previously  attached  in  a  suit 
against  him  as  surviving  partner.  The 
assignee,  who  is  the  garnishee  in  this  pro- 
ceeding, qualified  and  took  possession  of 
the  assigned  property,  including  the  part- 
nership and  individual  assets  of  the  as- 
signor, and  interposes  the  assignment  as 
a  defense  to  the  plaintiff's  application  for 
judgment  against  him  as  garnishee.  The 
question  involved  here  is  the  alleged  inva- 
lidity of  the  assignment.  The  assignment, 
on  its  face,  purports  to  be  made  in  behalf 
of  the  partnersliip, — that  is  to  say,  by 
"Daniel  Flynn,  as  surviving  partner  of  M. 
J.  Flynn  &  Bro.,"  and  by  "Daniel  Flynn," 
party  of  the  first  pari",  and  Hamlet  Ste- 
vens, the  garnishee  herein,  as  party  of  the 
second  part;  and  transfers  all  "the  lands, 
tenements,  goods,  chattels,  choses  in  ac- 
tion, claims,  demands,  property,  and  ef- 
fects of  every  description  belonging  to  the 
party  of  the  first  part,  whether  tlie  same 
be  and  appear  in  the  name  of  M.  J.  Flynn, 
or  M.  J.  Fiynn  &  Bro.,  or  Daniel  Flynn,  or 
otherwise,  for  a  full  and  more  definite  de- 
scription of  which  reference  is  hereby  made 
to  the  inventory  or  inventories  thereof  to 
be  made  and  filed  under  this  assignment 
as  provided  by  law,  except  such  proper- 
ty as  is  bylaw  exempt  from  execution, 
*  *  *  in  trust  for  the  uses  and  purposes 
following,  •  •  •  after  providing  for 
the  expenses  of  the  execution  of  the  trust.  " 
"(3)  To  pay  and  discharge  in  full,  if  the 
residue  of  said  proceeds  be  sufficient  for 
that  purpose,  all  the  debts  and  liabilities 
now  due  or  to  become  duefromsaid  party 
of  the  first  part  to  all  his  creditors,  who 
shall  file  releases  of  their  claims  and  debts 
against  the  said  party  of  the  first  part,  as 
by  law  i)rovided.  togetlier  with  all  inter- 
est due  and  to  become  due  thereon.  And 
if  the  residue  of  said  proceeds  shall  not  be 
sufficient  to  pay  said  debts  and  liabilities 
and  interest  in  full,  then  to  apply  thesame, 
so  far  as  they  will  extend,  to  the  payment 
of  the  said  debts  and  liabilities  and  ijiter- 
est  proi)ortionall\-  to  their  res[)ective 
amounts,  and  in  accordance  with  the  stat- 
ute in  such  case  made  and  provided.  And 
if,  after  payment  of  all  costs,  charges,  and 
expenses  attending  the  execution  of  said 
trust,  and  thf»  payment  and  discharge  in  full 
of  all  the  said  lawful  debts  owing  by  the 


said  party  of  the  first  part,  there  shall  be 
anysurplusof  the  said  proceeds  remaining 
in  the  hands  of  the  parly  of  the  second  part, 
theri  (4)  to  repay  such  surplus  to  the  party 
t)f  tlie  first  part,  his  executors,  administra- 
tors, or  assigns."  By  the  party  of  the 
first  nart  is  meant  Daniel  Flynn  and  Dan- 
iel Fl^-nn  as  surviving  partner,  and  he 
brings  into  the  assignment,  for  disposi- 
tion in  the  insolvency  proceedings,  his  in- 
dividual and  partnership  assets  for  the 
purpose  of  winding  up  the  partnership 
affairs,  and  settling  its  debts  and  liabili- 
ties as  well  as  his  own,  and  jirocuring  a 
discharge  of  his  partnership  and  individual 
liabilities  in  so  far  as  it  may  be  done  in 
the  proceedings. 

1.  The  first  objection  to  the  validity  of 
the  assignment  is  that  it  was  notpro[»erly 
acknowledged.  The  insolvency  act  (Law's 
18Si),  c.  30,  §  1)  provides  that  "the  assign- 
ment shall  be  made,  acknowledged,  and 
tiled  in  accordance  with  and  be  govei-ned 
by  the  laws  of  this  state  relating  to  as- 
signments." The  assignment  in  this  in- 
stance is  executed  by  "  Daniel  Flynn  "  and 
by  "Daniel  Flynn,  surviving  partner  of  M. 
J.  Flynn  &  Bro."  The  certificate  of  ac- 
knowledgment recites  that  "Daniel 
Flynn,"  without  further  recital  ordescrip- 
tion,  personally  appeared  before  the  no- 
tary, and  acknowledged  the  same  "to  be 
his  free  act  and  deed."  The  objection  is 
that  it  is  defective  in  not  showing  or  cer- 
tifying that  it  was  acknowledged  by  him 
"as  surviving  partner"  also.  But  the  in- 
strument was  executed  by  but  one  and  the 
same  person.  It  shows  on  its  face  what 
was  intended  to  be  conveyed  thereby,  and 
the  purposes  thereof.  The  acknowledg- 
ment is  the  proof  of  its  execution  ;  and 
whei*e  the  certificate  identifies  the  party 
who  alone  executed  the  deed,  and  affirms 
tiiat  he  personally  acknowledged  its  exe- 
cution, it  must  be  interpreted  to  be  for  the 
uses  and  purposes  disclosed  by  the  instru- 
ment itself,  and  the  omission  of  matter  of 
description  is  not  fatal.  1  Devi.  Deeds,  § 
507;  Dail  v.  ^Moore.  51  Mo.  oSD;  Williams 
V.  Frost.  27  Minn.  250,  6  N.  W.  Rep.  793. 

2.  .\nother  objection  to  the  validity  of 
the  assignment  is  that  it  does  not  trans- 
fer all  the  partnership  property.  A  large 
amount  of  real  estate  stands  in  the  name 
of  the  deceased  partner,  which,  in  equity, 
belonged  to  the  partnership,  and  is  part- 
nership assets;  and  the  assignment  is  as- 
sailed on  the  ground  that  the  survivor's 
deed  of  assignment  did  not  and  could  not 
include  and  transfer  this  property.  But 
the  deed  expressly  assumes  to  convey  the 
same,  and  in  caseof  insolvency  it  is  clearly 
liable  to  be  applied  to  the  payment  of  the 
partnership  debts,  and  the  equitable  title 
thereto  must  be  deemed  to  be  in  the  sur- 
viving partner  for  sucii  purpose,  and 
passes  to  his  assignee  in  insolvency.  It  is 
now  well  settled  that  a  surviving  partner 
may  make  an  assignment  of  the  partner- 
ship estate,  and  this  will  include  the  part- 
nership real  estate,  which  so  far  stands  on 
thesame  footing  as  personal  property; 
and  the  assignee  or  purchaser  can  compel 
a  conveyance  of  the  legal  title  from  the 
holder  thereof.  Andrews  v.  Brown,  21 
Ala.  437;  Shanks  v.  Klein,  104  U.  S.  24;  1 
Bates,  Partn.  S  204. 

3.  On  the  dissolution   of  a   partnership 


PARTNEllSHIP  ASSETS. 


49 


by  death  the  surviving  partner  settles  tlie 
affairs  of  the  concern.  The  partnprsliip  is 
deemed  to  continue  for  such  puri)o.se.  He 
alone  is  entitled  to  the  posse.ssioii  and  dis- 
position of  the  assets,  to  enaljle  liini  to 
discharge  the  debts  and  settle  the  partner- 
ship affairs.  The  joint  creditors  have  the 
primary  claim  upon  the  joint  fund  in  the 
distribution  of  the  assets  of  insolvent  part- 
ners, and,  in  case  of  any  surplus  after  the 
payment  of  the  partnership  debts,  the  rep- 
resentatives of  the  deceased  partner  are 
entitled  to  his  share  thereof.  In  the  ad- 
ministration of  the  estate  the  surviviufj; 
partner  is,  therefore,  to  be  treated  as  trus 
tee  fi»r  the  creditors  and  the  heirs  or  rep- 
resentatives of  the  deceased  partner;  but 
in  all  other  resi^ects  he  is  treated  as  hav- 
ing succeeded  to  all  the  rights,  interests. 
and  property  of  the  partnership.  He 
alone  may  sue  and  he  sued.  He  has  tlie 
possession,  control,  and  sole  disposing 
power  of  the  partnership  assets.  3  Kent, 
Comm.  57,  04;  Shanks  v.  Klein,  supra. 
In  the  settlement  of  the  estate  the  creditors 
have  a  right  to  insist  ur)on  the  equitahle 
rule  and  order  of  distribution  above  indi- 
cated ;  and  hence  the  respondent  claims, 
as  a  further  ground  of  objection  to  this 
assignment,  that  by  the  terms  of  the  trust 
tliis  rule  is  violated,  and  debts  due  the 
separate  creditors  of  the  surviving  [)artner 
are  put  on  the  same  footing  with  debts 
due  the  partnership  creditoi's,  without 
preference  for  the  latter.  If  the  assign- 
ment had  expressly  provided  that  one 
class  of  creditors  should  be  prefeiTed  to 
another,  or  that  i)artnership  property 
should  befirstapplied to thesatisfaction  of 
the  individual  dehts  of  one  partner  in  the 
order  of  distribution,  a  different  and  more 
serious  question  would  have  been  pre- 
sented; but  the  assignment  simply  follows 
the  general  language  of  the  statute  on  the 
sunject.  Gen.  St.  c.  41,  §  2S,  subd.  3. 
This,  section  is  to  be  construed  in  connec- 
tion with  the  general  rules  of  law  api)lica- 
ble  to  the  distribntit)n  of  partnership  as- 
sets,and  this  is  what  is  meant  by  an  e<iual 
distribution  of  the  assigned  pr()[)erty.  It 
would  have  been  approi)riate  and  more 
accurate  to  have  indicated  the  proper  or- 
der of  distribution  in  the  assignment;  but 
the  assignor  evidently  intended  to  follow 
the  statute,  to  whioli  he  refers,  and  en- 
deavors to  conform  to  the  general  lan- 
guage used  therein.  The  assij;ned  j)rop- 
erty  must  be  deemed  to  be  under  the  con- 
trol and  subject  to  the  direction  of  the 
court,  and  tlie  assets  may  therefore  be 
marshaled  and  distributed,  so  as  to  pro- 
tect the  rights  of  the  partnership  cred- 
itors. 

4.  The  plaintiff  also  insists  that  under 
the  rule  in  Mav  v.  Walker,  o'>  Minn.  I'.t4.  lis 
N.  W.  Kep.  -Vc',  and  In  re  Allen,  4l  Minn. 
431,  43  N.  W.  Rep.  3S:.',  the  assignment 
herein  is  a  [»artial,  and  not  a  general, 
one,  and  that  releases  cannot  be  exacted 
as  a  condition  of  sharing  in  the  assets  un- 
h'ss  the  proi)erty  of  all  the  partners,  indi- 
vidual as  well  as  partnership,  be  surren- 
dered, and  included  in  the  assignment, 
and   that  in    this  instance    the    separate 

VAN  ZILE.SEL.CAS.PKKS. — i 


property  of  the  deceased  partner  .8  not 
brouyrht  in;  but  we  think  this  case  is 
clearly  distinguishable.  The  plaintiff,  we 
think,  overlooks  the  relation  between  the 
living  partner  and  the  heirs  or  representa- 
tives of  the  deceased  partner,  ancl  the  nat- 
ure of  the  title  and  authority  of  a  surviv- 
ing partner.  The  heirs  or  personal  repre- 
sentatives of  a  deceased  partner  have  no 
control  over  or  interest  in  the  partnership 
affairs  or  profjerty  except  to  recjuire  an 
accounting.  They  have  none  of  the  rights 
or  duties  of  partners,  and  no  obligations 
save  their  liability  in  e(|uit>  to  the  ext<?nt 
of  property  received  from  their  ancestor 
in  case  of  the  insolvency  of  the  partner- 
ship. To  that  extent  they  occupy  the 
quasi  relation  of  sureties  in  respect  to  the 
remedv  of  the  partnershi|)  creditors  against 
them.'  Murray  v.  Fox,  39  Hun,  110.  Ill, 
and  cases.  The  property  so  received  by 
them  is  not  partnership  pro[)erty,  and  baa 
ceased  to  be  the  property  of  a  partner,  it 
passes  to  the  heirs  or  rei)resentatives,  sub- 
ject merely  to  the  contingency  mentioned. 
As  l>eiore  stated,  the  surviving  partner  is 
all  there  is  left  of  the  partnership.  He  has 
title  to  the  property;  may  collect,  settle, 
and  comijroniise  debts.  He  alone  is  sua- 
ble, and  is  the  real  party  in  interest  in  re- 
spect to  demands  '^ue  to  or  owing  by  the 
firm,  and  is  primarily  liable  for  all  its  in- 
debtedness; and  his  legal  title  to  the  as- 
sets is  exclusive  for  the  purposes  of  admin- 
istration. Daby  v.  Eiicsson,  45  N  Y. 
7<S9 ;  Shields  v.  Fidler,  G5  Amer.  Dec.  205, 
and  notes.  And  since  the  recent  amend- 
ments to  the  insolvency  law  it  can  hardly 
be  doubted  that  an  insolvent  surviving 
partner  is  fairly  embraced  within  its  pro- 
visions, and  entitled  to  its  benehts.  (;i)  A 
firm  claiming  to  be  insolvent,  and  \fi-o- 
ceeding  under  the  insolvent  act.  all  the 
members  should  join  in  the  proceedings 
and  surrender  their  property.  But  tli;- 
surviving  partner  constitutes  the  i)artner- 
ship;  and, if  such  partnership  is  insolvent, 
he  is  an  insolvent,  and  may  bring  into 
court  the  assets,  both  partni'rshio  and  in- 
dividual, lure  Stevens.  1  Sawy.39S-J).  {h) 
By  section  1,  c.  30,  Laws  1SS9,  it  is  provid- 
ed that  the  release  of  any  debtor  under  this 
act  shall  not  operate  to  discharge  any 
other  party  liable  as  suret.v,  guarantor, 
orotherwise.forthe  samedebt.  Doubtless 
the  voluntary  dischary:e  of  the  surviving 
p.irtner  by  a  partnership  creditor  would, 
of  itself,  operate  to  discharge  the  collat- 
eral liabilit3'  of  the  personal  representa- 
tives of  the  deceased  partner.  ^Iurra.v  v. 
Fox,  supra.  But  such  was  not  the  effect 
of  a  discharge  under  the  nati«)nal  bank- 
rupt act,  and  the  rule  in  insolvency  pro- 
ceedings here  is  settled  by  the  provision 
al)ove  quoted.  The  discharge  from  the 
l)artnershii)  debts  is  a  discharge  of  the  pri- 
mar.y  liability  of  the  surviving  partner, 
but  doi'.s  not  operate  to  release  the  estate 
of  the  deceased  partner  fis)m  liabilit.v.  In 
re  Stevens,  supra.  We  think,  therefore, 
the  assignment  must  be  sustained.  The 
jutlgment  is  I'eversed,  and  the  case  will 
be  remanded  to  the  district  court,  with 
directions  to  di.scbarge  the  garnishee. 


LIGHT  AND  AIR. 


WESTERN   GRANITE    &  MARBLE   CO  v. 
KNICKERBOCKER  et  al.      (No.   15,196.) 

(3T  Pac.  102.  103  Cal.  111.) 

Supreme  Court  of  California.     June  15,  1S94. 

Commissioners'  decision.  Department  2. 
Appeal  from  superior  court,  Santa  Clara  coun- 
ty;  W.  G.  Lorigan.  Judge. 

Action  by  the  Western  Granite  &  Marble 
Company  against  Eugene  Knickerbocker  and 
others  to  enjoin  the  erection  of  a  fence.  From 
a  decree  granting  the  injunction,  and  from  an 
order  denying  a  new  trial,  defendants  appeal. 
Affirmed. 

William  L.  Gill,  for  appellants.  D.  W.  Bur- 
chnrd  and  Francis  E.  Spencer,  for  respond- 
out. 

TEMPLE,  C.  The  defendants  appeal  from 
the  judgment,  and  from  a  refiisal  of  a  new 
trial.  The  appellants  and  respondent  own 
adjoining  lots  in  the  city  of  Sin  Jose.  The 
complaint  contains,  two  counts.  The  first 
describes  plaintiff's  lot.  and  avers  that  it  has 
erected  a  building  thereon  for  its  offices, 
which  building  has  six  windows  in  the 
northerly  wall,  through  which,  only,  light 
and  air  are  or  can  be  admitted  into  that  por- 
tion of  the  building,  and.  if  such  light  and  air 
be  materially  obsU'ucted.  said  portion  of 
plaintiff's  building  will  become  useless.  Plain- 
tiff has  been  using  the  building  and  office  for 
more  than  six  months.  Defendant  owns  the 
adjoining  lot  which  he  occupies  as  a  resi- 
dence, but.  until  the  grievances  complained 
of.  has  never  obstructed  the  passage  of  light 
and  air  over  that  part  of  his  premises  to 
plaintiffs  building,  and  has  no  use  whatever 
for  that  portion  of  his  premises  whereby  said 
light  and  air  would  be  obstructed.  Never- 
theless, on  the  10th  of  June,  1801,  defendant 
commenced  to  build  along  the  division  line  a 
solid  board  fence,  20  feet  high,  in  such  man- 
ner as  to  prevent  the  passage  of  light  and 
air  into  said  windows.  That  the  defendant 
has  not  obtained  the  permission  of  the  city 
council  to  build  such  fence,  nor  has  plaintiff 
ever  consented  thereto.  That  defendant  will 
build  the  fence  unless  enjoined,  and  plaintiff 
will  suffer  irreparable  injury  therefrom. 
The  second  count  adds  an  allegation  that  the 
building  of  the  fence  is  wanton  and  mali- 
cious. The  court  foimd  the  facts  as  stated 
in  the  first  count  of  the  complaint,  but  did 
not  finl  that  defendant  was  acting  wantonly 
or  maliciously. 

The  docti'ine  that  a  proprietor  may  by  user 
acquire  an  easement  over  adjoining  land  for 
the  passage  of  light  and  air  does  not  prevail 
in  this  country,  and,  if  it  did,  the  facts  stated 
in  the  complaint  would  be  insufficient  to 
show  such  easement.  Indeed,  no  facts  are 
averred  or  found  winch  would  give  plaintiff 
any  right  whatever  in  the  lands  of  defendant. 
The  sole  groimd.  therefore,  upon  which  the 
judgment  is  based,  is  that  the  proposed 
structm-e  is  imlawful.  and.  as  it  interferes 
with  the  comfortable  enjoyment  of  plaintiffs 


property,  it  is  a  private  nuisance,  which  may 
be  enjoined  or  abated.  It  is  claimed  to  be 
unlawful  because  it  violates  the  provisions  of 
the  act  of  the  legislatiu-e  passed  March  9, 
1SS5.  entitled  "An  act  regulating  the  height 
of  division  fences  and  partition  walls  in  cities 
and  towns."  The  act  consists  of  three  sec- 
tions, the  first  twc  of  which  read  as  follows: 

"Section  1.  It  shall  be  unlawful  for  any 
owner  of  real  property  in  any  city  or  town 
in  this  state,  or  any  person  having  possession 
thereof,  to  construct,  erect,  build,  permit  or 
maintain  upon  such  premises  any  fence  or 
partition  wall  which  shall  exceed  ten  feet  in 
height,  without  first  obtaining  a  periuit  to  do 
so  from  the  board  of  supervisors  or  city  coim- 
cil  of  the  city  or  town  in  which  said  fence 
or  wall  is  to  be  erected  and  maintained. 

"Sec.  2.  No  permit  to  construct  or  maintain 
any  fence  or  division  partition  wall  having  a 
greater  height  than  ten  feet,  shall  be  granted 
by  the  board  of  supervisors  or  city  council  of 
any  city  or  town  in  this  state,  unless  the  per- 
son applying  therefor,  and  to  whom  such  per- 
mit is  granted,  shall  first  obtain  and  present 
to  stich  board  of  supervisors  or  city  coimcil 
the  written  consent  of  the  person  or  persons 
having  ownership  or  possession  of  the  ad- 
joining premises  affected  thereby:  provided, 
that  where  such  fence  or  wall  is  constructed 
around  a  public  garden,  or  place  of  public  re- 
sort where  an  admission  fee  is  charged,  no 
signature  or  consent  of  adjacent  owners  shall 
be  reciuired." 

The  third  section  declares  that  a  violation 
of  section  1  shall  be  a  misdemeanor,  and  pro- 
vides a  penalty. 

It  is  contended  that  this  act  is  unconstitu- 
tional. 

1.  It  violates  section  11  art  11,  of  the  con- 
stitution, which  confers  upon  counties,  cities, 
and  towns  the  power  to  make  and  enforce 
such  police  regulations  as  are  not  inconsist- 
ent with  general  laws.  This  position  must 
be  that  the  act  is  not  a  general  law.  This 
position  cannot  be  maintained.  It  operates 
alike  upon  all  who  are  within  the  reason  of 
the  act.  There  are  reasons  in  the  nature  of 
things  why  it  should  dot  affect  some  prop- 
erty. 

2.  It  is  claimed  that  it  is  imconstitutional. 
because  it  gives  the  owner  of  the  adjoining 
property  the  power  to  prevent  such  a  struc- 
tiu"e.  If  the  act  must  be  construed  as  ren- 
dering it  unlawful  for  the  owner  to  erect 
such  a  structure  uptm  his  own  land,  although 
along  the  line.  I  think  it  is  obnoxious  to  tliis 
objection.  Merely  owning  the  adjoining  lot 
does  not  give  the  proprietor  an  easement 
over  the  property  of  another  for  the  passage 
of  light  and  air;  nor  is  it  competent  for  the 
legislature  to  vest  in  such  proprietor  the 
power  to  prevent  his  neighbor  from  build- 
ing such  structures  as  he  pleases,  provided  it 
is  not  a  nuisance,  and  it  is  not  such  merely 
because  it  obstructs  the  passage  of  light  and 
air.  The  legislature  cannot  thus  create  an 
easement  in  favor  of  certain  proprietors  over 
the  lauds  of  another,  nor  declare  the  usual 


LIGHT  AND  AIR. 


51 


and  ordinary  use  of  property  a  nuisance 
•when  such  use  infringes  upon  the  legal  rights 
of  no  one.  The  court  found  in  this  case  that 
the  plaintiff's  windows  open  towards  defend- 
ant's lawn.  That  this  portion  of  his  prem- 
ises shall  be  secluded  and  private  may  be  a 
matter  of  great  importance  to  defendant. 
That  he  has  the  right  to  secure  such  privacy, 
if  he  can,  by  building  obstructions  on  his  own 
land,  has  always  been  recognized  by  the 
courts.  In  Chandler  v.  Thompson,  3  Camp. 
80,  Le  Blanc,  J.,  said  "that,  although  an  ac- 
tion for  opening  a  window  to  distiu-b  the 
plaintiff's  privacy  was  to  be  read  of  in  the 
boolis,  he  had  neA'er  known  such  an  action 
maintained,  *  *  *  ^mj  t|ja|-  ^jjg  only  rem- 
edy was  to  build  on  the  adjoining  land,  op- 
posite to  the  offensive  window."  Washburn 
lays  down  the  rule  as  follows:  "And  the 
cases  are  uniform  that  such  adjacent  owner 
may  deprive  his  neighbor  of  the  light  coming 
laterally  over  his  land  by  the  erection  of  a 
wall,  for  instance,  upon  his  land,  within  the 
period  of  prescription,  although  he  may  do  it 
for  the  mere  purpose  of  darkening  his  neigh- 
bor's windows."  It  is  well  settled  that  he 
may  build  upon  his  property,  although  the 
effect  may  be  to  entirelj^  close  the  windows 
of  his  neighbor.  But,  if  the  statute  is  capa- 
ble of  a  construction  whioh  will  bring  it 
within  the  legislative  power,  it  should  be  so 
construed,  rather  than  in  a  way  to  render  it 
unconstitutionaL  The  power  has  been  con- 
ceded to  the  legislature  to  provide  for  and 
regulate  the  construction  of  division  fences. 
It  may  authorize  their  construction  upon  the 
boundary  line;  that  is, resting  partly  upon  the 
land  of  the  adjoining  proprietor.  It  may 
provide  for  the  character  of  the  fence  which 
may  be  thus  built,  so  as  to  make  it  certain 
that  the  adjoining  proprietor,  who  may  be 
compelled  to  contribute  to  the  expense,  there- 
by secures  something  of  value.  While  there 
are  expressions  in  the  statute  that  might  well 
be  understood  as  prohibiting  a  sti-ucture  in- 
closing defendant's  lot  more  than  10  feet 
high,  although  not  on  the  boundiu'y  line, 
still  the  language  is  entirely  consistent  with 
the  other  view;  and  we  should  thereft»re  pre- 
sume that  it  was  the  intent  of  the  legislature 
to  do  that  which  it  had  the  power  to  do. 

It  is  said  that  the  act  forbids  a  partition 
wall  as  well  as  a  fence,  and  that,  under  the 
statute,  one  may  not  build  a  house  on  his 
land  extending  to  his  boundaiy  line  without 
the  consent  of  his  neighbor.  But  under- 
standing  the    law    as    simply     applying     to 


fences  or  walls  built  upon  the  line,  and  so 
resting  partly  upon  the  land  of  the  adjoining 
proprietor,  it  takes  nothing  from  the  owner, 
for  he  could  build  no  such  wall  upon  his 
neighbor's  land  without  his  consent  But  I 
think  the  phrase  "partition  wall,"  in  the  first 
section,  and  "division  partition  wall,"  in  the 
second,  must  be  understood  as  applied  to  a 
wall  which  is  merely  a  fence.  "Partition 
wall"  is  not  a  phrase  which  in  legal  tech- 
nology is  used  to  designate  a  wall  used  by 
adjoining  owners  as  a  party  wall.  A  party 
wall  is  always,  at  least  in  this  state,  such  by 
agreement.  A  division  fence  is  provided  for 
in  our  Code  (section  841,  Civ.  Code).  Confin- 
ing the  operation  of  the  statute  to  division, 
fences,  I  see  no  objection  to  a  re<iuirement 
that  they  shall  not  be  of  such  a  character  as 
to  injm-e  the  neighboring  proprietor.  If  my 
neighbor  enjoys  the  privilege  of  resting  his 
fence  upon  my  land,  he  may  justly  be  pre- 
vented from  inflicting  special  injury  upon 
me  by  the  structure  which  partly  belongs  to 
me,  and  to  the  expense  of  building  which  I 
may  be  made  to  contribute.  The  finding  is 
to  the  effect  that  plaintiff's  building  is  alM)ut 
IS  inches  from  the  line;  that  defendant 
Knickerbocker  commenced  the  construction 
of  the  fence  "upon  his  said  premises  and  up- 
on said  boundary  line."  The  evidence 
shows  that  there  was  already  upon  the 
boundary  line  a  division  fence,  and  that  de- 
fendant cut  into  this  old  fence  to  let  in  the 
frame  work  of  his  new  structure,  which  is 
theiefore  upon  the  old  fence,  and  p:irtlj'  up- 
on the  land  of  plaintiff.  By  the  decree,  de- 
fendant is  enjoined  from  erecting  or  main- 
taining any  fence  more  than  10  feet  high  "on 
the  division  line,"  and  is  required  to  remove 
ail  that  portion  of  the  "division  fence  which 
is  more  than  ten  feet  high."  and  he  is  en- 
joined from  "obstructing  the  light  and  air 
coming  from  his  said  premises  into  the  win- 
dows of  said  granite  and  marble  company  by 
any  division  fence  or  wall  more  than  ten  feet 
high."  This  shows  how  the  ti'ial  coiu't  re- 
garded the  statute.  The  judgment  has  no 
effect  upon  the  right  of  defendant  to  erect 
any  kind  of  a  structure  upon  his  own  land. 
I  think  the  judgment  and  order  should  be  af- 
firmed. 

We  conciu-:    SEARLS,  C;    HAYNES.  C. 

PER  CURIAM.  For  the  rea.sons  given  in 
the  foregoing  opinion,  the  judgment  and  or 
der  are  aflii'med. 


52 


LIGHT  AND  AIR. 


KEATING   V.   SPRINGER. 
(34  N.  E.  805,  14G  111.  481.) 

Supreme  Court  of  Illinois.     June  19.  1893. 

Appeal  from  appellate  court.  First  district. 

Action  by  Warren  Springer  against  Michael 
Keating  for  v^e  and  occupation.  Plaintifif 
obtained  judgment,  which  was  atfimied  on 
appeal.  44  111.  App.  547.  Defendant  ap- 
peals.    Reversed. 

The  other  facts  fully  appear  in  the  follow- 
ing statement  by  MAGRUDER.  J.: 

On  March  15.  1S84,  appellee  executed  a 
written  lease  of  certain  premises  to  appellant 
for  the  period,  extending  from  April  1,  1884, 
Jo  April  1,  1894.  for  .<;3U.(XK),  payable  in 
monthly  installments  of  .?250  each.  The 
premises  are  described  in  the  lease  as  fol- 
lows: "All  those  premises  situated  *  *  * 
in  the  city  of  Chicago.  *  *  *  known  and 
described  as  follows,  to  wit:  'The  basement 
of  the  building  known  as  Nos.  201,  203.  and 
205  So.  Canal  street.  Chicago,  being  a  space 
50  feet  by  70  feet,  more  or  less;  also  the 
stare  floor  of  part  of  said  building,  and  known 
as  Nos.  201  and  203  So.  Canal  street,  being  a 
.space  50  feet  by  .')0  feet,  more  or  less;  also  a 
space  in  the  yard  at  the  rear  of  said  building, 
commencing  at  the  N.  W.  quarter  of  said 
building,  then  west  25  feet,  then  south  25  feet, 
then  east  25  feet,  to  building.— together  with 
steam  power  not  to  exceed  ten  horse  power, 
said  steam  power  to  be  furnished  ten  hours 
per  day,  Sundays  and  holidays  excepted. 
Said  premises  hereby  leased  to  be  used  and 
occupied  as  a  marble  works  and  kindred 
business,  and  in  no  manner  as  to  damage  or 
interfere  with  tenants  of  adjoining  proper- 
ty.' "  The  lease  contained,  amoug  others,  the 
following  provisions,  to  wit:  "Party  of  the 
iirst  part  [Springer]  shall  not  build  at  the 
rear  of  said  premises  nearer  than  twenty-five 
feet  and  no  (Obstruction  higher  than  six  feet 
shaU  be  placed  in  such  manner  as  to  obstruct 
light  to  said  premises,  and  party  of  the  second 
part  shall  at  all  times  have  the  use  and  free 
access  through  all  now  existing  alleys  leading 
to  rear  of  said  premi.ses."  Appellant  oc- 
cupied the  premises  under  the  lease  from  its 
date  until  July  17,  1888.  when  he  left  them. 
The  building  was  a  two-story  and  basement 
frame  building,  fronting  east  on  Canal  street, 
between  Van  Buren  street,  on  the  south,  and 
Jackson  street,  on  the  north,  and  having  a 
depth  of  50  feet.  It  had  windows  in  the 
front  and  rear,  and  on  the  north  and  south 
sides.  The  territoiy  around  it  was  practical- 
ly vacant  at  the  date  of  the  lease.  There  was 
then  no  building  to  the  south  of  it  nearer 
than  40  or  .50  feet,  except,  perhaps,  a  small 
shed;  none  in  the  rear  or  to  the  west  of  it 
nearer  than  about  GO  feet;  and  none  to  the 
north  nearer  than  30  feet,  or  more.  There 
were  some  sheds  and  platforms  to  the  north, 
and  some  rubbish  to  the  we.st.  but  nothing  to 
obstruct  the  light  needed  for  cutting  and  pol- 
ishing marble.  In  the  space  on  the  south 
there  was  an  alley  running  west  from  Canal 


street  to  Clinton  street,  connecting  with  which 
was  another  aUey  running  north  and  south  in 
the  rear  of  the  premises  in  question.     In  1885 
appellee  erected  a  large  brick  building,  called 
the  "Springer   Building."   having   five  stories 
above  the  basement,  fronting  2(>  feet  on  Canal 
street,  and  having  a  depth  of  75  feet.     Its 
north  wall  was  immediately  against  the  south 
wall  of  appellant's  building,  called  the  "Keat- 
ing Building;"  and  it  extended  25  feet  further 
west  than  the  Keating  building,  the  extension 
of  25  feet  being  on  the  south  line  of  the  space 
in  the  rear  of  the  Keating  building,  as  de- 
scribed in  the  lease.    The  proof  tends  to  show 
that  appellee  dug  excavations  on  the  lines  of 
the  alleys,  and  built  boiler  and  machine  shops 
in   the   rear   of   the    Keating   building;     and 
placed  obstructions  of  various  kinds   in  the 
alleys   and   in  the  space  to  the  rear  of  the 
Keating  building.    From  the  differences  grow- 
ing   out   of  these   transactions    various   euits 
have  resulted.     Appellee  brought  agitinst  ap- 
pellant a  suit  in  assumpsit  for  the  use  and  oc- 
cupation of  said  premises,   to    which   nonas- 
sumpsit  was  pleaded;    a  suit  upon  a  note  al- 
leged to  have  been  given  for  rent,  to  which 
pleas  of  nonassumpsit  and  set-off  were  filed; 
three  proceedings  of  distress  for  rent,  in  which 
the  general  issue  and  certain  special  pleas  of 
set-off  and  general  replications  to  the  latter 
were  filed.     And  appellant  brought  an  action 
in  case  against  appellee  to  recover  damages 
for  cutting  off  his  light  by  the  erection  of  the 
Springer  building  and  other  obstructions,   to 
which  the  plea  of  not  guilty  was  filed.     The 
said  special  pleas  set  up  violations  of  the  cov- 
enants of  the  lease  by  alleging:  that  the  light 
was  shut  off  on  the  south  and  in  the  rear  of 
the  Springer  building,  and  its  extension  to  the 
west,  and  by  the  erection  of  shafting  and  ma- 
chinerj-  and  other  obstructions  more  than  15 
feet  high;   and  that  the  alleys  were  closed  up 
by  the  placing  therein  of  iron  boilers,   cast- 
ings, engines,  building  materials,  etc.;  and  that 
steam  power   was   not    furnished,   etc.     The 
suit  for  use  and  occupation  was  begun  in  the 
circuit  court  of  Cook  county.     Of  the  other 
suits,  one  was  begun  in  said  circuit  court,  one 
in  the  superior  court  of  said  county,  and  three 
in  the  county  court  of  said  county.     The  four 
suits  last  named  were  transferred  by  proper 
order  to  the  circuit  court,  and  an  order  wa.s 
entered  by  the  latter  court  in  the  suit  for  use 
and  occupation  consolidating  the  other  suits 
with  it.     A  stipulation  was  entered  into  be- 
tween counsel  that  there  should  be  one  trial, 
which   should  determine  the  matters  in  con- 
troversy in  all  the  suits.     A  jurj-  was  waived, 
and    by   agreement    the    consolidation    cause 
was   submitted   for   trial   before   one   of   the 
judges  of  the  circuit  court,   without  a  jury. 
Upon  the  trial,  the  plaintiff.   Springer,  intro- 
duced   the    written    lease,    and    proved    the 
amount  of  unpaid  rent  due  thereon  from  Oc- 
tober, 1887,  to  July  17.  ISSS.     A  large  mass 
of  evidence  was  introduced  by  the  defend- 
ant.  Keating,   principally   in   support   of   the 
contentions   that    buildings   and   obstructions 


LIGHT  AXD  AIR. 


53 


were  erected  in  the  rear  of  the  premises 
nearer  than  25  feet,  and  that  the  use  of  the 
alleys  and  free  access  through  the  same 
were  interfered  with  and  cut  off.  In  con- 
tradiction of  this  evidence  a  large  number 
of  witnesses  were  examined  by  the  plain- 
tiff. At  the  close  of  his  testimony  thus  in- 
troduced, the  plaintiff  offered  in  evidence, 
and  the  court  received,  over  defendant's  ob- 
jection and  exception,  the  proceedhigs  in  a 
forcible  entry  and  detainer  suit  begun  by 
Springer  against  Keating  before  a  justice  of 
the  peace  on  April  25,  1888,  wherein  the 
complainant  alleges  that  Springer  was  en- 
titled to  the  possession  of  said  premises,  and 
that  Keating  unlawfully  withholds  the 
same,  wherein  judgment  was  rendered  in 
favor  of  Springer  on  May  8,  1888,  and  an 
appeal  was  taken  and  perfected  to  the  su- 
perior court,  which  appeal  was  dismissed  on 
July  9,  1888,  and  a  further  appeal  was  taken 
and  allowed  to  the  appellate  court  upon  filing 
bond  and  bill  of  exceptions  within  20  days. 
On  October  3,  1891,  judgment  was  entered  by 
the  circuit  court  in  favor  of  Springer  for 
$2,907.50  against  Keating,  and  in  the  suit  of 
Keating  against  Springer  the  latter  was 
found  not  guilty.  This  judgment  has  been 
affirmed  by  the  appellant  court,  (44  111.  App. 
547,)  and  the  case  is  brought  here  bj'  appeal. 

Hanecy  &  Merrick,  for  appellant.  Allan  C. 
Stoiy,  for  appellee. 

MAGRUDER,  J.  (after  stating  facts).  In 
this  case  many  questions  of  fact  and  law  are 
discussed  by  counsel  in  their  briefs,  but  the 
record  is  not  in  such  shape  as  to  authorize  us 
to  consider  any  of  these  questions,  except  that 
which  arises  out  of  the  refusal  of  the  trial 
court  to  admit  certain  offered  evidence,  as 
hereinafter  stated.  The  trial  was,  by  agree- 
ment, before  the  court,  without  a  jury,  and 
resulted  in  a  judgment  for  the  plaintiff,  which 
has  been  affirmed  by  the  appellate  court. 
The  judgment  of  the  latter  court  is  conclu- 
sive as  to  the  findings  of  fact.  No  "written 
propositions  to  be  held  as  law  in  the  decision 
of  the  case"  were  submitted  to  the  court  on 
the  trial  below  by  either  side,  in  accordance 
with  section  42  of  the  practice  act;  and  hence 
no  question  of  law  is  presented  for  our  de- 
termination, unless  the  errors  assigned  as  to 
tiie  admission  or  exclusion  of  evidence  neces- 
sarily involve  the  consideration  of  such  a 
question.  Bank  v.  Haskell,  124  111.  587,  17 
N.  E.  59;  Myers  v.  Bank,  128  111.  478,  21  N. 
E.  580;  Hall  v.  Cox   (111.  Sup.)  83  N.  E.  33. 

The  evidence  tends  to  show  that  a  strong 
light  is  necessary  for  such  business  of  manu- 
facturing and  polisliing  marble,  as  appellant 
was  engaged  in,  and  that  tlie  demised  prem- 
ises were  selected  by  the  appellant  for  that 
business  mainly  because  of  their  freedom 
from  surrounding  obstructions  to  the  supply 
of  light.  Accordingly,  the  defendant  below 
offered  to  prove  that  the  erection  of  the 
Springer  building  on   the   south   side  of  the 


Keating  building  prevented  the  entry  of  light 
into  the  latter  from  the  south  and  west.  Up- 
on objection  by  the  plaintiff,  the  court  re- 
fused to  receive  the  testimony,  and  an  excep- 
tion was  taken  to  its  rulings  by  the  defend- 
ant. The  action  of  the  trial  court  was  cor- 
rect, if  there  is  no  express  covenant  or  agree- 
ment in  the  lease  obligating  the  landlord  to 
permit  the  light  to  pa.ss  over  the  south  lot 
into  the  leased  premises.  The  English  doc- 
trine is  that,  "if  one  who  has  a  house  with 
windows  looking  upon  his  own  vacant  land 
sell  the  same,  he  may  not  erect  upon  his  va- 
cant land  a  structure  which  shall  essentially 
deprive  such  house  of  the  light  through  its 
windows."  Washb.  Easem.  marg.  p.  492,  par. 
5.  This  doctrine,  however,  does  not  prevail 
in  the  majority  of  the  American  states.  It  is 
held  to  be  inapplicable  in  a  country  like  this, 
where  the  use,  value,  and  ownersliip  of  laud 
are  con.stantly  changing.  Air  and  light  are 
the  common  property  of  all.  The  owner  of  a 
lot  cannot  be  presumed  to  have  assented  to 
an  encroachment  thereon  if  he  has  permitted 
the  light  and  air  to  pass  over  it  into  the  win- 
dows of  his  neighbor's  house,  situated  upon 
the  adjoining  lot.  The  actual  enjoyment  of 
the  air  and  light  by  the  latter  is  upon  his  own 
premises  only.  The  prevalent  rule  in  the 
United  States  is  that  an  easement  in  the  un- 
obstructed passage  of  light  over  an  adjoining 
close  cannot  be  acquired  by  prescriittiou.  2 
Woodf.  I.andl.  &  Ten.  marg.  p.  7U3,  and 
notes;  1  Tayl.  Landl.  &  Ten.  §§  239,  38(J,  and 
notes;  Keats  v.  Hugo,  115  Mass.  204;  Mulk-u 
V.  Strieker,  19  Ohio  St.  135.  In  the  early  c-ase 
of  Gerber  v.  Grabel,  IG  111.  217.  this  court 
beld  that  such  a  right  might  be  so  acquired; 
but  in  the  later  case  of  Guest  v.  Reynolds,  ijS 
111.  478,  the  Gerber  Case  was,  in  effect,  over- 
ruled, and  it  was  held  that  "prescription  right, 
springing  up  under  the  narrow  limitation  in 
the  English  law,  to  prevent  obstruct  ii  us  to 
window  lights,"  "cannot  be  applied  to  the 
growing  cities  and  villages  of  this  country 
without  working  the  most  mischievous  conse- 
quences, and  has  never  been  deemed  a  part 
of  our  law."  It  is  established  by  the  weight 
of  American  authority  that  a  grant  of  the 
right  to  the  use  of  light  and  air  will  not  be 
implied  from  the  conveyance  of  a  house  with 
windows  overlooking  the  land  of  the  grantor; 
and  that,  where  the  owner  of  two  adjacent 
lots  convejs  one  of  them,  a  grant  of  an  case- 
ment for  light  and  air  will  not  be  implied 
from  the  nature  or  use  of  the  structure  exist- 
ing on  the  lot  at  the  time  of  the  conveyance, 
or  from  the  necessity  of  such  easement  to  the 
convenient  enjoyment  of  the  property.  Keats 
V.  Hugo,  supra;  Mullen  v.  Strieker,  supra;  1 
Wood,  Landl.  &  Ten.  §  200,  i)p.  422-424.  and 
note;  Morrison  v.  Marquardt,  24  Iowa,  35. 
"A  grant  by  the  owner  of  two  adjoining  lots 
of  one  of  them  does  not  imply  the  right  of  an 
unobstructed  passage  of  light  and  air  over  the 
other."  2  Woodf.  Landl.  &  Ten.  marg.  p. 
703,  and  note.  "The  law  of  uupliod  grants 
and  implied  reservations,  based  upon  neces- 


54 


LIGHT  AND  AIR. 


Pity  or  use  alone,  should  not  be  applied  to 
easements  for  light  and  air  over  the  premises 
of  another."  Mullen  v.  Strieker,  supra;  Hav- 
ei-stick  V.  Sipe.  33  Pa.  St.  3G8;  Keiper  v. 
Elein.  51  Ind.  316.  It  follows  that  a  landlord 
will  not  be  liable  for  obstructing  his  tenant's 
windows  by  building  on  the  adjoining  close,  in 
the  absence  of  any  covenant  or  agreement  in 
the  lease  forbidding  him  to  do  so.  Myers  v. 
Gemmel,  10  Barb.  .337;  Palmer  v.  Wetmore, 
2  Sandf.  310;  Keiper  v.  Elein,  supra,  2 
Woodf.  Landl.  &  Ten.  marg.  p.  703,  and  note. 
But  the  authorities  all  agree  that  the  right 
to  have  the  light  and  air  enter  the  windows 
of  a  building  over  an  adjoining  lot  may  ex- 
ist by  express  grant,  or  by  virme  of  an  ex- 
press covenant  or  agreement.  Hilliard  v.  Coal 
Co.,  41  Ohio  St.  002;  Brooks  v.  Reynolds.  100 
Mass.  31;  Keats  v.  Hugo,  supra;  Morrison  v. 
Marquardt,  supra.  The  question  then  arises 
whether  the  erection  of  the  Springer  building 
could  have  been  regarded  as  a  violation  of 
the  express  terms  of  the  lease,  if  proof  had 
been  admitted  showing  that  it  obstructed  the 
light  necessary  to  carry  on  the  business.  The 
lease  contains  the  following  provision:  "Par- 
ty of  the  first  part  shall  not  build  at  the  rear 
of  said  premises  nearer  than  2o  feet,  and  no 
obstiiietion  higher  than  six  feet  shall  be  pla- 
ced in  such  manner  as  to  obstriict  light  to  said 
premises."  The  meaning  of  the  word  '"prem- 
ises," as  here  used,  is  not  to  be  restricted 
to  the  Keating  building  alone,  but  embraces 
also  the  space  in  the  rear  thereof.  The  lease 
speaks  of  "all  those  premises  *  *  ■  *  de- 
scribed as  follows;"  and  then  mentions,  as 
constituting  those  premises — First,  the  ba.se- 
ment;  second,  the  store  floor;  "also  a  space 
in  the  yard  in  the  rear,"  2.j  feet  deep.  The 
space  in  the  rear  is  as  much  a  part  of  the 
premises  demised  as  the  basement  and  the 
store  floor.  Therefore  the  appellee  agreed 
that  he  would  not  build  nearer  than  25  feet 
to  the  west  line  of  the  demised  space  west 
of  the  Keating  building,  which  space  was  25 
feet  wide  from  east  to  west.  The  Springer 
building  was  75  feet  deep,  while  the  Keating 
building  was  only  50  feet  deep.  It  follows 
that  the  extension  of  the  former  west  of  the 
rear  of  the  latter  was  along  the  south  line  of 
said  space  in  the  yard  at  the  rear.  The  north 
wall  of  the  Springer  building  did  not  extend 
further  west  than  the  west  line  of  said  space 
in  the  yard,  and  consetiuently  the  whole  of 
the  Springer  building  was  south  of  the  de- 
mised premises;  hence  we  think  counsel  foi 
appellee  is  right  in  the  contention  that  no  part 
of  that  buildina  can  be  considered  as  an  ob- 
stniction  placed  in  the  rear  or  to  the  west 
of  the  premises  leased  to  appellant.  But  we 
cannot  agree  with  counsel  in  so  construing 
the  language  of  the  provision  as  to  limit  it  to 
obstructions  placed  in  the  rear.  The  land- 
lord does  not  agi'ee  that  no  obstruction  higher 
than  six  feet  shall  be  placed  in  the  rear  in 
such  manner  as  to  obstnict  light  to  said  prem- 
ises. His  agreement  is  that  no  obstruction 
higher  than  six  feet  shall  be  placed,  whether 


to  the  north  or  to  the  west  or  to  the  south, 
in  such  manner  as  to  obstruct  light  to  said 
building;  that  is.  to  said  space  in  the  rear, 
as  well  as  to  said  building.  The  Springer 
building— a  brick  structure,  five  sto'-ies  high- 
was  so  constnicted  that  its  north  wall  joined 
the  south  wall  of  tne  Keating  building,  and 
the  south  line  of  the  space  in  the  yard  at  the 
rear  thereof.  In  view  of  the  express  provi- 
sion in  the  lease,  as  above  quoted  and  con- 
strued, we  are  of  the  opinion  that  the  defend- 
ant below  was  entitled  to  prove,  if  he  could, 
that  the  Springer  building  was  an  obstniction 
placed  in  such  manner  as  to  obstruct  light  to 
said  premises,  and  that  the  trial  court  should 
have  admitted  'he  proof  upon  that  subject 
when  offered. 

It  is  claimed,  however,  that  the  offered  evi- 
dence was  properly  rejected,  because  this  suit 
is  for  rent  a«'cruing  during  a  period  while 
the  tenant  was  in  possession.  In  order  to  con- 
stitute an  eviction,  it  is  not  necessaiy  that 
there  should  be  an  actual  physical  expulsion 
Acts  of  a  grave  and  permanent  character, 
which  amouni  to  a  clear  indication  of  inten- 
tion on  the  landlord's  part  to  deprive  the  ten- 
ants of  the  enjoyment  of  the  demised  prem- 
ises, will  constitute  an  eviction.  Hayner  v. 
Smith.  03  111.  430.  If  the  acts  of  the  landlord 
are  such  as  merely  tend  to  diminish  the  bene- 
ficial enjoyment  of  the  premises,  the  tenant 
is  still  bound  for  the  rent,  if  he  continues  to 
occupy  the  premises.  Unless  he  abandons 
the  premises,  his  obUgation  to  pay  the  rent 
remains.  SkaJly  ^.  Shute,  132  Mass.  307. 
We  said  in  News  Co.  v.  Browne,  103  111.  317: 
"The  rule  is  well  settled  that  the  wrongful 
act  of  the  landlord  does  not  bar  him  from  a 
recovery  of  rent,  unless  the  tenant  by  such 
act  has  been  deprived  in  whole  or  in  part 
of  the  possession,  either  actually  or  construct- 
ively, or  the  premises  rendered  useless.  Ed- 
gerton  v.  Page.  20  N.  Y.  2S4;  HaUigan  v. 
Wade,  21  lU.  470;  Leadbeater  v.  Roth,  25  lU. 
5S7."  To  "evict"  a  tenant,  according  to  the 
original  signification  of  the  word,  is  to  deprive 
him  of  the  possession  of  the  land.  But  the 
landlord,  without  being  guilty  of  an  actual 
physical  disturbance  of  the  tenant's  posses- 
sion, may  yet  do  such  acts  as  will  justify  or 
warrant  the  tenant  in  leaving  the  premises. 
The  latter  may  abandon  the  premises  in  con- 
sequence of  such  acts,  or  he  may  continue 
to  occup.v  them.  If  he  abandons  them,  then 
the  circumstances  which  justify  such  abandon- 
ment, taken  in  connection  with  the  act  of 
abandonment  itself,  will  support  a  plea  of 
eviction,  as  against  an  action  for  rent.  If, 
however,  the  tenant  malies  no  surrender  of 
the  possession,  but  continues  to  occupy  the 
premises  after  the  commission  of  the  acts 
which  would  justify  him  in  abandoning  them, 
he  will  be  deemed  to  have  waived  his  right 
to  abandon,  and  he  cannot  sustain  a  plea  of 
eviction  by  showing  that  there  were  circum- 
stances which  would  have  justified  him  in 
leaving  the  premises;  hence  it  has  been  held 
that  there  cannot  be  a  constnictive  eviction 


LIGHT  AXD  AIR. 


without  a  surrender  of  possession.  It  would 
be  unjust  to  permit  the  tenant  to  remain  in 
possession,  and  then  escape  the  payment  of 
rent  by  pleading  a  state  of  facts  which,  though 
conferring  a  right  to  abandon,  had  been  un- 
accompanied by  the  exercise  of  that  right. 
Edgerton  v.  Page,  supra;  Boreel  v.  Lawton, 
00  N.  Y.  293;  De  Witt  v.  Pierson.  112  Mass. 
8;  Warren  v.  Wagner,  75  Ala.  ISS;  Wright 
V.  Lattin,  38  111.  293;  1  Tayl.  Laudl.  &  Ten. 
(8th  Ed.j  §§  380,  381,  and  notes;  Wood. 
Landl.  &  Ten.  (2d  Ed.)  §  477.  pp.  1104-110(5; 
Alger  V.  Kennedy,  49  \t  109;  Scott  v.  Si- 
mons, 54  X.  H.  42G;  Jackson  v.  Eddy.  12  Mo. 
209.  But  though  the  tenant  will  not  be  al- 
lowed to  plead  eviction  as  a  bar  to  the  re- 
covery of  rent  where  he  has  remained  in  pos- 
session after  the  performauce  of  the  acts 
which  would  have  justified  him  in  leaving 
the  premises,  yet  he  is  not  for  that  reason 
without  remedy.  In  those  states  where  the 
doctrine  of  recoupment  is  recognized,  he  may 
recoup  such  damages  as  he  may  have  sus- 
tained by  reason  of  the  acts  of  the  landlord, 
against  the  rent  sought  to  be  recovered.  1 
Tayl.  Landl.  &  Ten.  §  374;  2  Tayl.  Landl.  & 
Ten.  §  631;  2  Wood.  Landl.  &  Ten.  §  477.  p. 
1107;  Edgerton  v.  Page,  supra;  Warren  v. 
Wagner,  supra.  Taylor,  in  his  work  on 
Landlord  and  Tenant,  (section  (>il.)  says:  "By 
the  law  of  recoupment,  as  now  established  in 
many  of  the  United  States,  the  tenant  can 
avail  himself,  as  a  defense  pro  tanto  to  an 
action  of  debt  for  rent,  of  the  landlord's 
breach  of  his  covenants."  The  doctrine  of  re- 
coupment is  recognized  in  this  state,  and  has 
been  applied  in  proceedings  begun  by  the  is- 
suance of  distress  warrants,  and  in  actions 
for  rent.  Wright  v.  Lattin.  supra;  Lindley 
V.  Miller.  67  111.  244;  Lynch  v.  Baldwin.  69 
111.  210;  Pepper  v.  Rowley.  73  111.  262.  In 
Lynch  v.  Baldwin,  supra,  where  the  landlord 
had  issued  a  distress  warrant,  we  said:  "As 
to  recouping  damages  for  any  loss  or  injury 
sustained  by  the  tenant,  we  have  no  doubt 
that  it  may  be  done,  as  they  grow  out  of  the 
same  ti-ansaction.  The  object  of  this  inquiry 
is  to  ascertain  the  amount  of  rent  due;  and, 
if  the  acts  of  the  landlord  impaired  the  value 
of  the  use  of  the  premises,  then  the  tenant 
should  not  pay  the  same  rent  as  if  the  land- 
lord had  done  no  act  to  re<luce  such  value." 
In  Pepper  v.  Rowley,  supra,  which  was  an 
action  to  reco^^er  rent  due  under  a  lease,  we 
said:  "If  there  has  been  a  breach  of  any 
covenant  contained  in  the  lease,  whatever 
damage  appellee  has  sustained  in  consequence 
thereof  may  be  recouped  in  this  action  from 
the  amount  of  rent  due  under  the  lease." 
In  the  case  at  bar  the  consolidated  proceed- 
ing not  only  includes  a  suit  for  rent.  Imt  also 
several  proceedings  begun  by  the  issuance  ot 
distress  warrants;  and  the  stipulation  per- 
mits the  defendant  to  introduce,  under  the 
general  issue,  "any  defense  and  also  any  set- 


off, whether  matter  of  contract  or  tort,  that 
he  may  have,  in  the  same  manner  *  *  * 
as  if  specifically  pleaded."  We  therefore 
think  that  the  offered  testimony  as  to  the  ef- 
fect of  the  erection  of  the  Springer  building 
upon  the  supi)ly  of  light  should  have  been 
received,  in  order  that  any  damages  which 
the  defendant  may  have  sustained  thereby 
might  be  recouped  in  reduction  of  the  amount 
of  recovery,  and  that  defendant  was  not  pre- 
cluded from  showing  such  damages  by  his 
failure  to  .surrender  possession  at  an  earlier 
date. 

Even  if  the  offered  testimony  was  not  ad- 
missible as  tending  to  show  damages  by  way 
of  recoupment,  it  was  competent,  under  the 
declaration  in  the  action  brought  by  Keating 
against  Springer,  to  recover  damages  for  cut- 
ting off  the  light  by  the  erection  of  the  Spring- 
er Imilding.  Under  the  stipulation,  not  only 
were  the  suits  brouglit  by  Springer  to  lie 
tried  together,  but  also  with  them  was  consoli- 
dated for  trial  at  the  same  time  the  action  in 
case  which  Keating  brouglit  against  Springer. 
It  is  well  .settled  that,  although  the  omission 
of  the  landlord  to  perform  his  covenants  may 
not  amount  to  an  eviction,  nor  operate  as  a 
bar  to  his  claim  for  rent,  yet  the  lessee  has 
his  remedy  by  an  action  to  recover  damages 
for  a  breach  of  the  covenant.  Warren  v. 
Wagner,  supra;  News  Co.  v.  Browne,  supra; 
Lounsberj-  v.  Snyder,  31  N.  Y.  ">14;  Wriglit 
V.  I.^ttiu.  supra;  Roj'ce  v.  Guggenheim.  1(»6 
Mass.  201;  1  Tayl.  Landl.  &  Ten.  S§  379.  3Sl. 
and  notes;  2  Wood.  Landl.  &  Ten.  §  477,  p. 
1107. 

It  is  furthermore  claimed  by  the  appellant 
that  all  the  matters  set  up  m  defense  or  as 
ground  of  recovery  by  the  defendant  in  the 
present  consolidated  suits  were  extinguished 
by  the  judgment  in  the  forcible  detainer  suit, 
and  that  said  judgment  operates  as  res  judi- 
cata, so  as  to  bar  all  appellant's  rights  of  re- 
covery or  recoupment.  We  are  unable  to 
yield  our  assent  to  this  view.  The  judgment 
in  forcible  entry  and  detainer  is  conclusive 
onlj^  as  to  the  right  of  possession,  and.  in  a 
certain  class  of  cases,  as  to  the  existence  of 
the  relation  of  landlord  and  tenant  between 
the  parties,  and  as  to  the  tenant's  wrongful 
holding  over.  Doty  v.  Burdick,  S3  111.  473; 
Norwood  V.  Kirby.  70  Ala.  397;  Hodgkins  v. 
Price,  132  Mass.  196;  8  Amer.  &  Eng.  Enc. 
Law.  p.  176.  It  was  said,  in  Robin.son  v. 
Crummer.  5  Gilman.  218.  that  "damages  are 
not  recoverable  in  this  action,  but  the  only 
judgment  for  the  plaintiff  is  that  he  have  res- 
titution of  the  premises,"  etc.  For  the  error 
committed  in  tlie  refusal  to  receive  the  evi- 
dence offered  by  the  defendant  as  hereinlje- 
fore  mentionetl.  the  judgments  of  the  appellate 
and  circuit  courts  are  reversed,  and  the  cause 
is  remanded  to  the  circuit  court  for  further 
proceedings  in  accordance  with  the  views 
herein  expressed. 


56 


LIGHT  AND  AIR. 


DILL  T.   BOARD  OF  EDUCATION  OF 
CITY  OF  CAMDEN. 

(20  Atl.  73).  47  N.  J.  Eq.  421.) 

Court  of  Chancery  of  New  Jersey.    Nov.  6, 
1890. 

Heard  on  bill,  answer,  and  proofs. 

T.  B.  Harned  and  Charles  Vnn  Dyke  Jo- 
line,  for  complainants.  William  H.  Jess 
and  Samuel  W.  Beldou,  for  defendants. 

PITNEY,  V.C.  The  complainant*  (moth- 
er and  daughter,  the  latter  an  infant)  are 
the  owners  of  a  ht)u.se  and  lot  situate  on 
the  .south  side  of  Che.stnut  street,  in  the 
city  of  Camden,  about  4.5  feet  east  of  New- 
ton avenue,  and  ask  the  court  to  enjoin 
the  delendants  from  erectiujr  a  school- 
house  on  land  immediately  adjoininj^ their 
lot  on  the  west.  The  defendants  are  the 
board  of  education  of  the  city  of  Camden, 
and,  as  .such,  have  jurisdiction  over  and 
charge  of  all  the  public  school  buildings 
and  grounds  in  said  cit.v.  and  have  con- 
tracted to  l)uiid.  and  beiore  the  interi)osi- 
tion  of  the  t-ourt  herein  were  about  to 
erect,  a  large  school  building  in  the  posi- 
tion mentioned,  which,  if  ^rected,  would 
almost  touch  the  westerly  line  of  the  com- 
plainants" lot,  and  would  be  in  close  prox- 
imity to  the  dwelling  standing  thereon. 
The  allegation  and  claim  of  the  complain- 
ants is  that  the  place  wliere  the  building 
is  to  be  erected  is  a  public  street  in  the 
city  of  Camden,  and  that  they  have  the 
right  to  have  it  kept  open  and  free  from 
obstruction,  as  well  for  jnirposes  of  access 
to  and  from  their  lot.  as  also  for  light,  air, 
and  ventilation.  The  question  litigatecl 
was  whether  or  not  the  place  in  question 
is  at  this  time,  or  ever  has  been,  a  public 
street;  or,  if  not  a  public  sti-eet  in  fact, 
whether  or  not  the  complainants  have 
not  in  it  the  same  rights  as  if  it  were  a 
public  street.  Both  parties  claim  title 
to  their  several  holdings  under  Sarah 
Kaighn,  who  became  seised  of  an  tindi- 
vided  interest  in  the  entire  block  of  land, 
of  which  the  premises  in  (piestion  are  a 
part,  upon  the  death  of  her  father,  James 
Kaighn,  some  time  prior  to  the  year  1S12. 
Heseems  to  have  died  seised  of  a  large  tract 
of  land  in  that  neighborhood,  which, 
shortly  after  his  death,  was  laid  out  into 
streets  and  called  "  Kaighnton. "  and  in 
].sl2  was  partitioned  among  his  children, 
and  in  that  partition  the  block  in  ques- 
tion, bounded  north  by  Chestnut  street, 
east  by  Broadway,  south  byKaighn's  av- 
enue, and  west  bj-  Fourth  street,  was  al- 
lotted to  Sarah  Kaighn.  This  block  was 
bisected  diagonally  by  a  street  called 
"Newtfjn  Avenue."  running  north-east 
and  south-west,  and  it  is  the  part  east  of 
Newt(jn  avenue  with  which  we  have  to 
do.  This  part  was  again,  during  Sarah 
Kaighn's  ownership,  bisected  by  an  alley 
or  street,  20  feet  w  ide,  running  east  and 
west,  called  "Sycamore  Street."  now  in 
use.  and  about  the  location  of  which  there 
is  no  dispute.  The  part  north  of  Syca- 
more street  was  again  bisected  by  an  alley 
or  street,  20  feet  wide,  running  north  and 
south,  wliich  has  never  been  wholly  opened 
to  the  public,  or,  if  ever  opened,  has  not 
been  kept  open  and  used  as  a  street,  and 
the  true  location  of  which  was   one  of  the 


matters  in  dispute  at  the  hearing.  The 
recorded  deeds  from  Sarah  Kaighn  for 
portions  of  the  north  part  of  the  block  in 
question  indicate  and  tend  to  prove  that 
it  was  at  some  time  laid  out  into  lots  on 
a  map,  with  the  alleys  in  question  plotted 
upon  it,  but  it  was  admitted  at  the  hear- 
ing that  no  cop3'  of  such  map  could  now 
be  found.  It  is  clear  that  some  time  prior 
to  l^h)  so  much  of  the  block  in  question  as 
lies  north  of  Sycamoi-e  street  was  divided, 
on  paper,  into  eight  lots,  seven  of  which 
had  a  frontage  of  40  feet  each  on  Broad- 
way, and  numbered,  commencing  with 
Sycamore  street,  13.  14,  15,  l(i,  17,  18,  and 
19.  which  last  was  on  the  corner  of  Broad- 
way and  Chestnut,  and  the  eighth,  num- 
bered 20,  is  the  lot  now  owned  by  the  de- 
fendants. The  defendants  produce  a  cer- 
tified copy  of  the  record  of  a  deed  dated 
May  20.  1S19,  made  by  Sarah  Kaighn  to 
John  Hopjtle,  by  which  she  conveys  to 
him  as  follows:  "The  four  folU)wing  de- 
scribed lots  of  ground,  situate  in  the 
Kaisrhnton  aforesaid,  designated  "Sarah 
Kaighn's  Square  No.  7,'  and  marked  in 
the  plan  thereof  'Nos.  13.14,  15,  &  Ui,' 
bounded  southward  by  a  twenty-feet  wide 
alley,  westward  by  other  ground  of  said 
Sarah  Kaighn,  northward  by  lot  No.  17, 
and  eastward  b3'  the  Woodbury  road, 
[Broad  waj-,]  leading  from  thence  to  Coop- 
er's Ferries,  containing  in  breadth,  noith 
and  south,  one  hundred  and  sixty  feet, 
making  four  lots,  each  forty  feet  front  on 
said  rcjad.  and  in  length,  east  and  west. 
«)ne  liu.'idn'd  and  lighty  feet,  with  i  g  ess. 
egress,  and  regi-ess  to  and  along  the  said 
alley  and  all  the  lanes,  etc..  belonging  to 
Kaighnton."  It  will  be  observed  that  in 
this  deed  there  is  no  mention  of  a  lane  or 
alley  on  the  west  side  oi  these  four  lots. 
Under  the  date  of  the  Nth  of  March.  1821, 
Sarah  Kaighn  lunde  a  deed  to  Joseph, 
John,  and  John  M.  Kaighn,  Joseph  Boggs, 
and  .losejih  B.  Cooper,  five  persons,  as 
trustees,  of  a  portion  of  this  block,  de- 
scribed asfi»llows:  "  Ail  that  lot  of  ground 
No.  20.  situate  in  Kaighnton  aforesaid,  on 
sul)division  of  Sarah  Kaighn  square  No. 
1.  beginning  at  the  angle  of  a  twenty-feet 
wide  alley,  and  the  Cooper  Creek  road 
[now  known  as"  Newton  Avenue;"]  thencj 
by  the  north  side  of  said  alley  [now 
known  as"S.vcamore  Street "]  eastward  to 
the  corner  of  another  twenty-feet  wide  al- 
ley, [the  alley  in  dispute;]  thence  north- 
ward by  the  west  side  of  said  alley  to  the 
south  side  of  Chestnut  street  [s/c]  till  it 
intersects  the  eastward  line  of  said  road, 
[Newton  avenue:]  thence  south-westerly 
by  said  road  to  the  jjlace  of  beginning." 
There  is  a  plain  hiatus  in  this  description, 
and  there  should  be  interpolated  after  the 
words  "Chestnut  street"  these  words: 
"Thence  westwardly  along  Chestnut 
street."  It  will  l)e  observed  that  no  dis- 
tances are  given  in  this  description.  The 
deed  declared  thatthegranteesshould  hold 
the  premises  in  trust  for  the  purposes  of 
permitting  the  freeholders  of  the  town  of 
Kaighnton  to  erect  upon  the  lot  conveyed 
a  .school-house  and  other  buildings  neces- 
sary and  proper  for  the  maintenance  of  a 
school. etc..  and  that  the  building  so  to  be 
erected  shall  be  used  to  keep  open  a  sch(iol 
forever.  Upon  this  lot.  in  1S56,  the  school 
authorities  erected  a  school-house,  which 


LIGHT  A^B  AIR. 


57 


lias  been  maintained  ever  since;  and  the 
one  now  proposed  to  be  erected  is  located 
between  such  school-honse  and  Chestnut 
street.  Under  the  date  of  the  lOtli  of 
March,  1S21,  two  days  after  tlie  maliinfj^ 
of  the  school-lot  deed,  Sarah  Kaighn  made 
separate  deeds  to  her  brother  Joseph 
Kaifi:hn  for  lots  Nos.18  and  19  in  that  sub- 
division, which,  though  dated  two  days 
later  than  the  school-lot  deed,  were  in  fact, 
acknowledged  and  delivered  on  the  sann- 
day  as  that  deed.  The  description  of  lot 
No.  19  in  its  deed  is  as  follows:  "Begin- 
ning at  the  corner  of  the  road  called 
*  Broadway  and  Chestnut  Street,'  in 
Kaighnton  aforesaid  ;  thence  westward  l)y 
Chestnut  street  two  hundred  feet  to  a 
twentj'-feet  wide  allej' ;  thence  southward 
by  said  alley  forty  feet  to  the  corner  of 
lot  No.  IS;  thence  eastwardly  by  said  lot 
two  hundred  feet  to  Broadway,"  etc., 
^'marked  in  the  plan  of  Sarah  Kaighn's 
square  No.  1  'No.  19,'  *  *  *  with  in- 
gress, egress,  and  regress  to  and  along 
Broadway  and  said  alley,  and  all  the 
streets,  lanes,  alleys,  and  passages  belong- 
ing to  Kaighnton  aforesaid."  Thedcedfor 
lot  No.  IS  calls  for  the  alley  on  the  west 
«nd.  and  the  same  languapje  is  used. 

The  reference  in  thesedeeds  to  a[)lan  con- 
taining subdivisions  of  Sarah  Kaighn's 
share  in  her  father's  estate  seems  to 
establish  the  actual  existence  of  the 
map.  It  will  be  observed  that  in  these 
deeds,  namely,  that  for  the  school  lot  and 
those  for  lots  Nos.  IS  and  19,  is  found  the 
first  mention  of  the  alley  in  question  run- 
ning north  and  south  from  (,'hestnut  street 
to  what  is  now  known  as  "Sycamore 
Street;"  and,  as  no  distances  along  the 
streets  are  given  in  the  deed  Uyr  the  sciiool 
lot,  it  seems  to  me  that  the  distance  of  200 
feet  from  Broadwaj-  alongChestnutstreet, 
given  in  the  deeds  for  lots  Nos.  IS  and  19, 
must,  as  between  the  parties  to  the  con- 
veyances of  March,  1821,  conclusively  lo- 
cate that  alley  asconimencing  at  Chestnut 
street,  with  its  eai^terlj-  side  200  feet  west 
of  Broadway.  And  this  was  finally,  in  sub- 
stance, conceded  by  the  defendants  at  the 
hearing,  although  the  laying  out  of  the 
lots  lying  south  of  Nos.  IS  and  19,  with  a 
depth  from  Broadway  of  only  ISO  feet, 
would  seem  to  indicate  that  Miss  Kaighn 
at  one  time  contemplated  the  locating  of 
the  alley  20  feet  further  east,  and  although 
in  point  of  fact  there  has,  for  many  years, 
been  an  alley  running  northwardly  from 
Sycamore  street  about  half-waj'  through  to 
Chestnut  street,  in  accordance  witli  this 
latter  plan.  In  1823  Joseph  Kaighn,  the 
grantee  of  lots  Nos.  18  and  19,  conveyed 
them  to  Joseph  Boggs,  for  a  valuable  con- 
sideration, using  the  same  description, 
calling  for  the  alley,  as  had  been  used  in  the 
two  deeds  from  Sarah  Kaighn  to  him  of 
March  10,  1S21,  and  referring  to  that  deed; 
and  it  will  be  here  observed  that  both 
Joseph  Kaighn  and  Joseph  Boggs  were 
trustees  in  the  school-lot  deed.  Joseph 
Boggs  died,  (just  when  does  not  aj)pear,) 
and  his  lieirs,  in  1843,  13  years  before  the 
echf)ol-house  was  built,  subdivided  lots  IS 
and  19  (which,  it  will  be  rcmembeied.  had, 
"When  combined,  a  frontage  of  80  feet  on 
Broadway  and  200  feet  on  Chestnut  street,) 
which  subdivision  is  shown  on  a  map 
made  by  the  counsel  of   both  sides  and  e.\- 


hibited  forbothpartiesatthehearing.  By 
that  subdivision  they  divided  the  two  lots 
in  (juestion.  N<js.  Is  and  19,  first  into  two 
parts,  making  two  h^ts,  loo  feet  front  each 
on  Chestnut  street,  and  the  westward  half 
of  these  two  lots  they  again  divided  into 
four  lots  of  25  feet  front  each  on  Chestnut 
street  and  80  feet  deep.  The  nKJst  west- 
ward of  these  lots  (.the  one  nearest  the 
M-  <)->l  '"I.  bt'ing  lui  A',  li),  in  th  l'.>-^g-i 
subdivision)  was  conveyed  by  deed  of 
April  4,  1843,  to  Francis  Boggs,  by  his 
brothers  and  sisters,  and  is  therein  de- 
scribed as  f<jllows:  "Beginning  at  the 
north-west  corner  of  a  twenty-feet  wide 
alley  and  Chestnut  street,  in  the  city  of 
Camden  ;  thence  eastward  twenty-tive  feet 
to  the  corner  of  lot  No.  11;  thence  south- 
ward by  lot  No.  11  eighty  feet  to  the  cor- 
ner of  lot  No.  11 ;  thence  westward  twenty- 
five  feet  to  a  corner  on  the  line  of  vacant 
land;  thence  north,  and  |)arallel  with  said 
alley,  eighty  feet  to  the  place  of  beginning.  " 
This  description  is  somewhat  blind.  The 
call  for  the  n(n-th-west  corner  of  the  alley 
and  Chestnut  street,  as  I  construe  the 
words  "north-west,"  was  an  impossible 
call.  There  was  no  such  corner.  The 
coui*se  of  Chestnut  street  was  nearly  due 
east  and  west,  and  the  alley  was  situate 
wholly  to  the  south  of  it.  If  the  word 
"n<jrth"is  omitted,  and  we  construe  the 
call  t(}  be  tor  the  west  corner  of  Chestnut 
street  and  th.e  alley,  we  include  the  alley 
in  the  lot  conve^'ed,  which  seems  an  unrea- 
sonable result.  It  is  also  ditlicult  to  un- 
derstand why  the  word  "parallel"  was 
predicated  of  a  line  which  was  coincident 
with  one  side  of  the  alley,  whether  we  lo- 
cate it  ISO  or  200  feet  west  of  P.roadway. 
These  peculiarities  in  the  de.scrii)tion  of  the 
deed  to  Francis  Boggs  do  not,  however, 
seem  to  me  sufficient  to  shake  the  result  I 
have  arrived  at  as  to  the  location  of  t!ie 
alley  in  question.  Francis  Boggs  con- 
veyed this  lot,  together  with  lot  No.  11,  to 
Adam  R.  Dill,  by  deed  dated  August  25, 
1866,  using  the  same  descrii)tion.  except 
that  it  commences  at  the  "s<iui  h-east " 
corner  of  a  20-feet  alley  nnd  Chestnutstreet ; 
and  shortly  after  Diil  built  a  dwelling  up- 
on it,  the  westerly  side  of  which  stands 
about  five  feet  fr(^m  the  westerly  lineof  the 
lot.  The  foregoing  stated  deeds  comprise 
the  paper  title  of  the  P'lrties  to  the /ocw.s-. 
No  other  conveyance  was  made  by  Miss 
Kaighn  affecting  it.  Adam  R.  Uiil  devised 
the  lots  to  the  con)i)lainants.  Before  the 
year  ls.")(),  when  the  school  authorities 
erected  the  school-house,  the  school-house 
lot  had  never  been  inclosed,  but  had  b'id 
o])en  to  common  with  the  alley,  Iteing  cov- 
ered with  brush  and  briars,  and  crossed  in 
all  directions  by  all  persons  jit  their  j)leas- 
ure.  At  or  shortly  after  the  erection  of 
the  school-house  the  trustees  inclosed  the 
lot  surrounding  it,  including  the  alley,  by 
a  common  board  fence  six  or  eight  feet 
high,  on  all  sides,  and  have  kept  it  inclosed 
ever  since.  The  part  of  it  covered  by  the 
alley  called  for  in  the  deeds  has  not  been 
))uilt  upon,  and  the  only  use  madeof  it  has 
been  for  a  i)lay-ground  for  theschool-lxjys. 
The  true  original  location  of  the  easterly 
fence,  or  "back  fence,"  as  it  was  called  at 
the  hearing,  of  this  inclosure  was  the  only 
question  of  fact  which  was  seriously  liti- 
gated at  the  hearing.     Thedefendants  con- 


58 


LIGHT  AND  AIR. 


teDde<l  that  this  fence  was  erected  in  1850 
in  its  present  loc-iitioii.  which  is  203  feet 
west  of  Broadway,  measured  alons  Chest- 
nut street,  and  included  nearly  all  the  locus 
of  the  alley,  and  tliat  it  has  been  maintained 
in  that  position  ever  since.  The  cont- 
plaiiiants  tonttnded  that  it  was  at  first, 
and  ft^r  many  years,  and  until  within  20 
years,  located  at  the  northerly  end.  20  feet 
further  west,  and  that  there  was  a  free 
passajre  alonj?  it  from  Chestnut  street  to 
Sycamore  street  up  to  a  period  within  20 
yea  ITS. 

1  do  not  deem  it  necessary  to  discuss  the 
evitlence  at  length,  and  content  myself 
with  sayinj;  that  I  think  the  decided 
weij^ht  of  it  is  with  the  defendants;  and  I 
am  satisfied  that  the  fence  has  stood  in  its 
present  position  for  nearly  84  years.  Be- 
ing: satisfied  that  the  fence  has  been  in  its 
present  position  for  at  least  33  years,  I 
must  hold  that  the  defendants  are  entitled 
to  the  benefit  in  law  of  such  inclosure  for 
that  jicriod  of  time.  No  disability  on  the 
I)art  of  any  owner  of  complainants'  lot  is 
all<^ffed  until  the  death  of  Adam  R.  Dill, 
\^hich  occurred  in  February,  1S>9. 

Two  questions  arise  upon  this  state  of 
facts:  First.  What  riiilits  in  the  alley 
arose  to  the  owner  of  complainants' lot 
out  of  the  language  used  in  the  several 
deeds  of  March  8  and  10,  lS2r?  Second. 
What  is  the  effect  upon  those  rights  of 
the  inclosure  of  the  alley  by  the  school  au- 
thorities, and  its  use  as  a  play-gi-ound  by 
the  school  children"?  With  regard  to  the 
first  question.  I  think  it  clear,  in  the  first 
place,  that  the  effect  of  the  deeds  was  to 
carry  the  title  to  each  of  the  grantees  of 
the  deeds  just  named  to  the  center  of  the 
alle.v.  There  is  no  difference  in  principle 
in  this  respect  between  the  use  of  the  word 
••  alle.v  "  and  the  word  "  street.  "  It  was  sa 
held  in  Wiggins  v.  Mc<  "leary.  49  N.Y.  34G.  and 
the  English  common  pleas  held  in  Holmes 
V.  Bellinghaiu.  7  C.  B.  (N.  S. )  329,  that  the 
presumption  was  that  the  title  of  proprie- 
tors of  land  abutting  on  a  private  way  ex- 
tended to  the  middle  of  the  way.  Chief 
Justice  CocKBt'K.N"  (page  330)  said:  "The 
same  principle  which  applies  in  the  case  of 
a  public  road  seems  to  me  to  apply  with 
equal  force  to  a  jtrivate  road."  That 
seems  to  me  a  i*easonable  view.  In  the 
next  place,  the  effect  of  the  several  deeds 
in  question  was  to  create  a  murual  estop- 
pel between  the  parties.— the  trustees  of 
the  school  lot  on  the  one  part  and  the 
grantee  of  complainants'  lot  on  the  other, 
each  against  the  other. — and  in  favor  of 
both  as  against  Sarah  Kaighn.todeny  that 
the  alley  in  question  existed.  Moreo\er, 
the  use  made  of  the  word  "alley  "  in  the 
othei  conveyances,  the  extension  thr{)ugh 
the  entire  block  of  that  now  known  as 
"Sycamore  Street."  and  the  description  of 
the  one  in  question  as  extending  from 
Chestnut  street  to  Sycamore  street. shows 
conclusively  that  it  was  intended  to  be 
and  have  all  the  attributes  of  a  public 
street.  Upon  the  principal  proposition  1 
cite  Washb.  Easem.  p.  170  et  seq.,  and 
God.  Easem.  (Perk.  Ed.)  p.  264  et  seq., 
and  the  cases  there  cited ;  and,  further, 
Roberts  v.  Karr,  1  Taunt.  495,  where  Chief 
Justice  Mansfiicld  says:  "If  yt)u  [the 
lessor]  have  told  me  in  your  lease  that 
this  piece  of  land   abuts  on  the  road,  you 


cannot  be  allowed  to  say  that  the  land  on 
which  it  abuts  is  not  a  road.  "  Also  Espley 
V.  Wilkes,  L.  R.  7  Exch.  29S,  where  (at 
page  303)  Roberts  v.  Karr  is  cited  with 
approval.  In  the  latter  jt.se  the  land  con- 
veyed was  described  as  abutting  on  "new- 
ly-made streets,"  and  the  chief  baron 
(page  :304)  says:  "Here  the  land  is  de- 
scribed as  abutting  upon  'newly-made 
streets,'  and  the  case  is  an  authority  to- 
show  that  the  grantor  is  estopped  from 
denying  that  the  strips  of  land  (his  prop- 
erty) are  what  he  describes  them  to  be, 
that  is  to  soy,  streets,  which  they  cannot 
be  unle9t>  there  be  a  wa.v  through  and 
along  them."  1  further  cite  Parker  v. 
Smith.  17  Mass.  413.  and  O'Linda  v.  Eoth- 
rop,  21  Pick.  292.  In  this  case  land  was 
sold  bounded  on  an  intended  street,  and 
at  page  296  the  court  say  :  "As  the  pur- 
chasers of  the  estates  on  each  side  of  the 
locu.s  in  quo  did  not  acquire  a  right  to  the 
soil  itself,  [holding  a  different  rule  in  this 
respett  from  that  prevailing  here.]  it  re- 
mains to  be  seen  whether  they  acquired  an 
easement  over  it.  There  was  no  express 
grant  of  a  right  of  way,  nor  did  any  way 
pass  as  appurtenant  to  ttie  land  granted, 
none  being  in  use  or  in  existence.  If  the 
defendant  acquired  an  easement  in  the 
land,  it  must  have  been  by  implication,  or 
on  the  principle  of  estoppel.  The  doctrine 
laid  down  in  Parker  v.  Smith,  17  Ma.ss. 
413.  seems  to  us  to  be  a  very  reasonable 
and  equitable  one.  That  ca.se,  we  think, 
was  perfectly  analogous  to  this;  but  if 
there  be  anj-  difference,  this  is  the  stronger 
of  the  two.  It  was  there  said  that  "the 
grantor  and  his  heirs  are  estopped  from 
denying  that  there  is  a  street  or  way  to- 
the  extent  of  the  land  on  those  two  sides. 
We  consider  this  to  be  not  merely  a  de- 
scription, but  an  implied  covenant  that 
thei-e  are  such  streets.'  This  opinion  is  de- 
cisive of  this  part  of  the  case.  "  The  ques- 
tion was  thoroughly  discussed  and  the 
principle  established  in  the  case  of  Child  v. 
('happen.  9  N.  Y.  246.  The  opinion  of 
MoKsi-:.  J ..  (page  257.)  seems  to  me  to  state 
the  doctrine  cleai'ly  and  truly,  and  I  adopt 
it:  "Where  an  owner  of  land  lays  it  out 
in  lots  and  streets,  and  exhibits  the  streets 
upon  a  maj)  by  which  ho  sells  and  conveys 
lots  so  laid  out.  as  between  him  and  the 
purchasers  of  such  lots,  the  spaces  so  laid 
down  upon  the  map  as  streets  are  dedi- 
cated as  such  to  the  public  use.  This  I 
understand  to  be  the  law,  and  in  conform- 
ity to  the  principles  of  natural  justice. 
The  mere  act  of  selling  and  conveying  by 
such  a  map  binds  the  grantor  to  permit 
the  land  so  laid  down  as  streets  to  be  used 
as  such.  As  between  the  parties,  their 
heirs  and  assigns,  it  Hxes  the  servitude  of 
a  public  wa^-  upon  the  land  thus  laid  out 
as  streets.  It  is  perhaps  unnecessary  now 
to  consider  whether  such  a  grant  as  be- 
tween the  grantor  and  the  pul)lic  would 
be  a  dedication.  •  •  *  The  transaction 
is,  however,  in  the  first  instance. strictly  a 
private  one  as  relates  to  the  streets,  as 
much  as  it  is  a  private  one  as  relates  to 
the  land  actually  conveyed.  The  right  to 
use,  and  to  have  used,  by  the  public,  the 
streets  laid  down  upon  the  map,  has  be- 
come an  appurtenance  to  the  parcel  of 
land  granted,  and  the  same  right  belongs 
to   each   of   the  parcels  granted  upon  the 


LIGHT  AND  AIR 


59 


same  terms.  As  between  the  original 
owner  of  the  land,  and  the  several  jsran- 
tees  of  parcels  thereof,  these  ri^^hts  are 
fixed,  but  until  the  public  has  in  someway 
become  a  part^-  to  the  transaction,  the 
whole  arrauj;ement  is  subject  to  be  re- 
scinded by  the  joint  act  of  the  original 
owner  and  of  all  those  who  own  and  have 
the  riffht  to  represent  the  land  sold.  Tiie 
principle  established  is  that  an  owner  of 
land  may  make  any  law^ful  disposition  of 
it  which  he  deems  most  beneficial.  He 
may  found  a  city,  a  village,  or  an  ap;rici]l- 
tural  or  manufacturing  community  at  his 
own  free  will,  .so  far  as  the  appropriation 
of  his  land  may  go  to  effect  such  purposes. 
He  may  adopt  just  such  measures  concern- 
ing his  land  as  to  his  judgment  may  seem 
expedient.  I  suppose  it  would  nowhere 
be  doubted  that  a  man  owning  a  hundred 
acres  (jf  land  through  which  there  ran  no 
highwaj'  would  be  at  liberty  to  inclose  it 
with  a  wall,  and  to  erect  a  fenced  town. 
He  might  lay  out  streets  throughout  the 
entire  parcel,  and  collect  a  phalanx  of  so- 
cialists, having  all  the  streetscommon  and 
as  among  themselves  public;  as  to  the 
world  beside,  exclusive  and  private.  In 
other  words,  there  might  be  impressed  up- 
on this  mass  of  private  property,  by  pri- 
vate contract,  rights, in  the  strictest  sense 
of  the  word,  analogous  to  the  ordinary 
public  rights  of  highway,  and  yet  these 
rights  confined  to  the  owners  and  rejjre- 
sentatives  of  the  land  forming  the  subject 
of  the  compact,  and  liable  to  be  ended  and 
rescinded  by  the  mutual  consent  of  all  who 
have  an  interest  in  the  subject.  " 

In  this  state  the  same  doctrine  was  an- 
nounced in  Prudden  v.  Railroad  Co.,  19  N. 
J.  Eq.  386,  at  pages  391,  392,  and  394,  and, 
although  the  decree  in  that  case  was  re- 
versed on  appeal,  the  statement  of  doc- 
trine referred  to  was  not  disturbed.  It 
was  reiterated  by  the  court  of  errors  and 
appeals  in  terms  still  more  clear  and 
strong  in  Booraem  v.  Railway  Co.,  40  N. 
J.  Eq.  5'u,  5  Atl.  Rep.  lOG.  In  that  case  the 
complainant  sougiit  to  restrain  the  de- 
fendant from  building  a  railway  across 
lands  sold  by  her  to  defendants  for  that 
purpose  in  such  a  manner  as  to  obstruct 
a  street  not  yet  constructed,  which  was 
reserved  iji  theconvej-auce  by  these  words  : 
"Together  with  all  the  right,  title,  and 
interest  of  the  said  party  of  the  first  part 
to  the  lands  covered  by  Ogden  and  Palisade 
avenues  in  front  of  the  lands  above  de- 
scribed, subject  to  the  easement  of  said 
avenues  respectively;  it  being  under- 
stood that  Ogden  avenue  is  extended 
for  the  same  width  across  said  premises, 
and  dedicated  as  a  public  highway.  "  In 
discussing  the  rights  of  the  complainant 
in  this  street  the  court  says:  "The  exten- 
sion of  Ogden  avenue  across  the  premises 
was  obviously  intended  by  the  parties  to 
afford  means  of  access  to  the  complain- 
ant's i-emaining  lands  from  the  present 
termination  of  the  avenue,  and  the  lan- 
guage used  in  the  deed  is  such  as  is  uni- 
formly recognized  as  sufficient  to  create 
an  easement  of  a  rignt  of  way  inter  partes 
by  way  of  implied  grant.  Nor  do  the  ad- 
ditional words  with  regard  to  the  exten- 
sion of  the  avenue  being  dedicate<l  as  a 
public  highway  impair  the  legal  effect  of 
the  language  of  the    deed   as  an  implied 


grant  of  an  easement.  The  creation  of  a 
public  right  to  he  enjoyed  in  future,  when- 
ever the  i)ul)lic  authorities  shall  see  fit  to 
adopt  the  extension  of  tiie  avenue  as  a 
public  highway,  is  not  inconsistent  with 
the  private  easement  which  inured  to  the 
grantee  immediately  fr(jin  the  grant. 
Indeed,  whenever  a  dedication  as  a  public 
highwciy  is  effected  (as  it  usually  is)  by 
means  of  conveyances  to  private  persons 
by  reference  to  a  proijosed  street  over 
other  lands  of  the  grantor,  the  private 
rights  of  the  several  grantees  pre<:ede  the 
public  right,  and  are  the  sourcp  from 
which  the  public  right  springs.  By  such 
conveyances  the  grantees  are  regarded  as 
purchasers  bj-  implied  covenant  of  the 
right  to  the  use  of  the  street,  as  a  means 
of  i)assage  to  and  from  their  premises,  as 
appurtenant  to  the  premises  granted  ;  and 
this  private  right  of  way  in  the  grantees 
is  wholly  distinct  from  and  independent  of 
the  right  of  passage  to  be  ac(]uired  by  the 
public.  "  I  sliould  have  thought  this  doc- 
trine so  thoroughly  settled  as  to  reijuire 
no  sui)port  by  citation  of  authority  but 
for  the  case  of  Hopkinson  v.  .McKnight,  31 
N.  J.  Law,  4L'2,  cited  and  relied  upon  by 
the  defendants'  counsel.  It  is  enough  to 
say  of  that  case  that  it  is  clearlj-  distin- 
guishable from  the  one  in  hand,  and.  so 
far  as  it  confiicts  with  the  doctrine  now  in 
question,  has  been,  in  effect,  overruled  by 
the  case  of  Boorai-m  v.  Railway  Co.  The 
right  to  have  the  ali»»y  thus  described  for- 
ever preserved  as  a  street  is  a  private 
right,  annexed  as  an  a|)purtenant  to  the 
ownership  of  the  land  conveyed,  and  is 
entirely  distinct  from  and  in  addition  to 
the  right  of  the  owner  asa  citizen  at  large 
to  use  the  street  after  it  should  become  a 
public  street  liy  accei)tance  by  the  [lublic 
authorities.  But  while  it  is  a  jirivate 
right  it  is,  in  my  judgment,  co-extensive 
with  the  public  right  just  mentioned,  in 
that  it  goes  the  length  of  requiring  that 
the  alley  should  be  preserved  in  all  ri"- 
8i)ects  its  if  it  were  actually  a  public  street. 
As  between  the  parties  against  whom  t!ie 
estoppel  acts  it  has  all  the  attributes  of  a 
public  street,  though  never  in  fact  accept- 
ed by  the  public.  If  we  inquire  what 
those  rights  are,  we  find  that  they  are 
twofold  :  First,  a  right  of  access  from  the 
abutting  property,  and  a  i)assage  to  and 
fro  over  it  in  all  its  extent ;  and.  si'coikL  a 
riglit  of  light,  air,  prospect,  and  ventila- 
tion. These  rigiits  are  quite  distinct  from 
eacii  other,  and  capable  of  being  separate- 
ly exercised  and  enjoyed.  The  right  of 
light  and  air  and  ventilation  may  be  en- 
joyed fully  without  the  least  exercise  of 
the  right  of  access  and  i)assage.  That  this 
right  of  light,  air.  i)rospect.  and  ventila- 
tion exists  is  cleaily  established  by  the 
authorities  of  this  and  other  states.  It 
was  clearly  defined  and  established  by  the 
court  of  ei*rors  and  upi)eals  in  this  state  in 
Barnett  v.  Johnson,  1."?  N.  J.  Eq.  4sl  ;  and 
its  ai)plication  in  that  case  to  the  case  of 
a  canal  is  an  apt  illustration  of  the  dis- 
tinctness of  such  right  from  that  i>f  access 
to  and  passage  over  the  highway  on  the 
servient  tenement.  The  court,  in  that 
case,  says:  "There  are,  it  appears  to  tuc, 
two  classes  of  rights,  originating  in  ne- 
cessity and  in  the  exigencies  of  human  af- 
fairs, springing  up  coeval  with  every  pub- 


60 


L  GUT  AND  AIR. 


lie  hiprhway.  anfl  which  are  recognized 
and  enforced  by  theconunon  lawofal!  civ- 
ilized nations'  The  first  relates  to  tlie 
public  passage:  the  seccjnd,  subordinate 
to  the  first,  but  equally  perfect  antl  scarce- 
ly less  important,  relates  to  the  adjoining 
ownei-s.  Among  the  latter  is  that  of  re- 
ceiving from  the  public  highway  light  and 
air.  In  the  first  i)lace.  has  not  the  adja- 
cent owner  upon  the  '  altn  regis  via,'  (the 
ordinary  pui>lic  highway,)  of  common 
right,  the  privilege  of  receiving  from  it 
light  and  air?  Univei*sal  usage  is  common 
law.  Wliat  has  this  been?  Men  do  not 
first  build  cities,  and  then  lay  out  roads 
through  them,  but  they  first  lay  out 
roads,  and  then  cities  spring  up  along 
their  lines.  As  a  matter  of  fact  and  his- 
tory, have  not  all  villages,  towns,  and 
cities  in  this  country  and  in  all  others, 
now  and  at  all  times  i)ast,  been  built  up 
upon  this  assumed  right  of  adjacency? 
Is  not  every  window  and  every  door  in 
every  house  in  every  city,  town,  and  vil- 
lage the  assertion  and  maintenance  of  this 
i^ght?  When  people  build  upon  the  pub- 
lic highway,  do  they  inquire  or  care  who 
owns  the  fee  of  the  road-bed?  Do  they 
act  or  rely  upon  any  other  consideration 
except  that  it  is  a  public  highway,  and 
they  the  adjacent  owners?  Is  not  this  a 
right  of  universal  exercise  and  acknowl- 
edgment in  all  times  and  in  all  countries, 
a  right  of  necessity,  without  which  cities 
could  not  have  been  built,  and  without 
the  enforcement  of  which  they  would  soon 
become  tenantless?"' 

The  same  doctrine  has  been  established 
after  fierce  and  protracted  litigation  in 
New  York  in  the  Elevated  Railway  Cases. 
Storv  V.  Railroad  Co.,  90  N.  Y.  122;  Lahr 
V.  Riiilroad  Co.,  104  X.  Y.  2tj'<,  10  X.  E.  Rep. 
52s.  Chief  Justice  Rt<;ER,  (at  pages  2"SS, 
2n9.)  in  stating  the  result  of  the  author- 
ities savs:  "That  abutters  upon  a  public 
street,  claiming  title  to  their  premises  b^- 
grant  from  the  municipal  authorities, 
which  contains  a  covin:iiit  that  a  street 
be  laid  out  in  front  ot  such  property, 
*  ♦  *  acquire  an  easement  in  the  bed 
of  the  street  for  ingress  and  egress  to  and 
from  their  premises,  and  also  for  the  free 
and  uninterrupted  passage andcirculatiou 
of  light  and  air  through  and  over  such 
street,  for  the  benefit  of  property  situated 
thereon ;  *  *  *  that  the  erection  of  an 
elevated  railroad,  the  u.se  of  which  is  in- 
tended to  be  permanent,  in  a  puldic  street, 
and  upon  which  cars  are  propelled  by 
steam-engines,  generating  gas,  steam,  and 
smoke,  and  distributing  in  the  air  cinders, 
dust,  ashes,  and  other  noxious  and  dele- 
terious substances,  and  interrupting  the 
free  passage  of  light  and  air  to  and  from 
adjoining  i)remises,  constitutes  a  taking  of 
the  easement,  and  its  appropriation  by 
the  railroad  corporation,  rendering  it  lia- 
ble to  the  abutters  for  the  danfages  occa- 
8ione<l  by  such  taking."  And  further,  (at 
page  29l'  104  X.  Y.,10  X.  E.  Rep.  .538:)  "An 
abutting  owner  necessarily  enjoys  certain 
advantages  from  the  existence  of  an  open 
street  adjoining  his  propertj",  which  be- 
long to  him  by  reason  of  its  location,  and 
are  not  enjoyed  by  the  general  public, 
Buch  as  the  right  of  free  access  to  his  prem- 
ises, and  the  free  admission  and  circula- 
tion of  light  and  air  to   and   through   his 


propertj'. "  This  right  of  light,  air,  and 
ventilation  is  property,  and  its  owner  is 
entitled  toits  preservation  and  enjoyment. 
In  Barnett  v.  Johnson  an  injunction  was 
issued,  restraining  the  defendant  from 
erecting  under  license  from  the  canal  com- 
pany, a  building  over  the  canal,  and  ad- 
joining plaintiff's  land.  And  in  the  Ele- 
vated Railroad  Cases  immense  sums  of 
money  have  been  paid  to  property  owners 
fronting  on  the  streets  for  obstructions 
to  light  and  air  caused  by  that  structure. 
It  remains  to  inquire  as  to  the  effect  in  the 
case  in  haml  upon  these  rights  of  the  iuclos- 
ureof  the  alley  as  a  part  of  the  play-ground. 
The  compIainants"couusel  take  theground 
that  the  right  in  this  alley  was  a  public 
right:  that  it  was  preserved  to  the  public, 
and  through  the  public  to  the  complain- 
ants, by  the  application  of  the  maxim  that 
"time  does  not  run  against  the  state." 
Cross  V.  Morristowu,  IS  X.  J.  Eq.  305; 
Land  Co.  v.  Hoboken,  36  X.  J.  Law,  549. 
I  do  not  think  the  complainants  can  avail 
themselves  of  that  staff.  The  maxim  can 
be  invoked  only  by  the  state  for  the  pres- 
ervation of  a  i)ublic  righ+.  and  the  com- 
plainants' rights  are,  as  alreadj'  shown, 
strictly  private.  The  complainants  must 
stand  upon  their  private  rights  alone.  Itis 
well  settled  that  mere  non-user,  for  any 
length  oftime.no  matter  how  long,  will  not 
destroy  or  extinguish  an  easement  arising, 
as  here,  out  of  express  grant,  as  distin- 
guished from  one  arising  out  of  long  ad- 
verse user.  In  order  to  destroy  the  ease 
ment  by  non-user  there  must,  in  addition, 
be  some  conduct  on  the  part  of  the  owner 
of  the  servient  tenement  adverse  to  and 
defiant  of  the  easement,  and  the  non-user 
must  be  the  result  of  it.  In  short,  it  must 
amount  t(^  an  acquiescence  of  20  j'ears  in 
acts  of  the  o\^  ner  of  the  servient  tenement 
hostile  to  and  intended  to  prevent  it. 
This  was  held  in  substance  in  Horner  v. 
Stillwell.  35  X.  J.  Law.  ;^07,  at  pages  313 
and  314;  Johnston  v.  Hyde.  33  X.  J.  Eq. 
632.  at  page  642;  and  in  Riehle  v.  Heulinus. 
38  X.  J.  Eq.  20,  by  Chancellor  Ru.nyo.v, 
whose  decree  was  affirmed  by  the  court  of 
errors  and  appeals,  for  the  reasons  given 
by  him.  At  page  '2?,  he  saj's:  "A  right  of 
way  cannot  be  released,  abandoned,  or 
surrendered  by  a  mere  parol  agreement. 
The  right,  in  this  case,  is  the  privilege  of 
the  use  of  a  lane  or  passage-wa3- of  twelve 
feet  wide.  It  was  granted  in  connection 
with  the  conveyance  of  the  lot.  (by  the 
same  1(vd.)  for  use  in  connection  witli  the 
lot.  and  for  the  convenience  of  the  owners 
thereof;  and  the  grant  was  to  them,  their 
heirs  and  assigns  forover.  If  the  fact  were 
that  the  land  or  passage-way  has  not 
been  used  for  the  last  twenty-seven  years 
except  by  exj^ress  permission  from  the  de- 
fendant or  his  father,  it  would  noi  bar  the 
complainant  from  a  right  to  relief.  The 
right  in  (piestion  exists  by  grant,  and  non- 
user  alone  will  not  forfeit  or  extinguish 
it."  And  see  .Arnold  v.  Stevens,  24  Pick. 
113.  and  Owen  v.  Field.  102  Mass.  112.  At 
page  114  A.MES,  J.,  says:  "'As  to  the  al- 
leged forfeiture  of  her  right  to  make  use  of 
the  two  springs  recently  taken  into  the 
aqueduct,  it  is  to  be  remembered  that  she 
claims  bv  deed,  and  for  that  reason  mere 
non-user  would  be  of  no  avail  to  impair 
or  defeat    her   right.      The    non-user,    to 


LIGHT  AND  AIR. 


61 


have  that  effect,  roust  be  in  conKeqiience 
of  something  which  is  adverse  to  the  user. 
Notliing  short  of  adverse  use,  on  the  part 
of  the  owner  of  the  servient  estate,  incon- 
sistent with  and  preventing?  the  use  of  the 
easement,  can  destroy  the  easement." 

Barnes  v.  Lloyd,  112  Mass.  224.  In  this 
case  the  defendant  claimed  a  right  of  way 
from  the  higliway  to  his  land  over  the  in- 
tervening land  of  the  plaintiff.  The  own- 
er of  botli  lots  had  conveyed  defendant's 
lot  to  his  grantor  in  1X00,  with  the  express 
grant  of  a  right  of  way  across  the  lot  re- 
tained, and  had  subsequently  conveyed  it 
to  the  plaintiffs  grantor,  reserving  a 
right  of  way  in  favor  of  defendant's  lot, 
which  reservation  had  been  inserted  in  all 
sut)seqiient  conveyances  of  plaintiff's  lot 
down  to  1859.  Prior  to  INTO,  being  a 
period  of  70  j'ears  from  the  creation  of  the 
right  and  20  years  from  its  last  recogni- 
tion by  the  owner  of  the  .servient  tene- 
ment, no  u.se  whatever  of  the  right  of  way 
had  been  made  by  the  S"ccessive  owners 
of  the  defendant's  lot,  and  plaintiff's  lot 
had  always  been  kept  fenced,  both  on  its 
road  side  and  on  the  line  with  defendant's 
lot,  and  also  across  the  middle,  by  fences 
without  any  gate-way  or  bar-way  or  other 
opening,  and  the  lotitself  had  been  contin- 
uously cultivated.  The  jury  found,  never- 
theless, that  there  had  not  been  such  ad- 
verse use  as  to  extinguish  the  easement, 
and  the  court  held  that  mere  non-user,  un- 
der the  circumstancej^,  did  not  extinguish 
it.  Ward  v.  Ward,  7  Exch.  S88,  is  to  the 
same  effect.  And  see  Jewett  v.  Jew- 
ett,  16  Barb.  150,  at  page  157;  Smvlcs  v. 
Hastings.  22  N.  Y.217.  at  page  224;  Butz  v. 
Ihrie,  1  Rawle,218;  and  Nitzell  v.  Paschail, 
3  Kawle,  76.  At  page  81  Chief  Justice 
Gibson  says:  "Where  however,  it  has 
been  acquired  by  grant,  it  will  not  be  lost 
by  non-user  in  analogy  to  the  statute  of 
limitations,  unless  there  were  a  denial  of 
the  title  or  other  act  on  the  adverse  part 
to  quicken  the  owner  in  the  assertion  of 
his  right. " 

This  brings  us  to  consider  the  character 
of  the  adverse  user  in  this  case.  It  con- 
sists wholly  of  the  fence  along  or  near  to 
the  line  of  the  alley  next  com[)lainants ' 
lot.  The  object  of  the  fence  was  to  inclose 
a  play-ground  for  the  children  attending 
the  school,  and  it  is  quite  natural  to  in- 
fer (liat  its  object  was  as  much  to  keep  the 
children  within  its  bounds  as  to  exclude 
the  neighbors  from  thenu  The  use  made 
of  the  ground  was  a  qu;isi  i)ublic  use,  and 
was  not,  as  it  seems  to  me,  necessarily 
hostile  to  access  and  passage  by  the  ad- 
joining owner.  Such  must  have  been  the 
rule  acted  upon  in  I?arnes  v.  Lloyd, supra. 
But  I  do  not  deem  it  necessary  to  decide 
in  this  case  whether  complainants'  right 
of  i)assage  over  the  locus  in  (ino  has  been 
lost  or  not,  since,  in  my  judgment,  the 
right  to  the  relief  asked  for  does  not  de- 
l)end  upon  it.  The  serious  question  is 
whether  the  inclosure  in  (juestion  was  ad- 
verse to  and  in  di-tiance  of  coin])[ainants' 
right  of  light,  air,  and  ventilation.  De- 
fendants contend  that  thelatter  right  was 
a  mere  incident  of  the  rigiit  of  way,  and 
must  stand  or  fall  with  it.  For  the  rea- 
sons already  staled,  1  cannot  adoi)t  that 
view.  The  enjoyment  of  light,  air.  and 
prospect   over   the  ]vcus  could  be,  and  in 


fact  was,  enjoyed  to  its  fullest  extent  with- 
out ever  placing  a  foot  upon  it.  They  fur- 
ther contend  that,  acccording  to  tiic  au- 
thorities, the  right  of  light,  air,  and  venti- 
lation is  only  appurtenant  to  a  strictly 
public  street.  But  I  have  already  showii 
that,  as  between  the  parties,  this  j»iere  of 
ground  must  be  considered  in  all  respects 
as  if  it  were  in  facta  pul)lic  street;  and, 
moreover,  the  right  in  question  is  one  ex- 
ercisable, and  freciuently  exercised,  over 
lands  in  which  the  public  lias  no  interest. 
It  was  further  contended  that  the  itidos- 
ure  of  the /ocw.s  by  the  school  authorities 
was  an  act  of  supreme  dominion,  and  an 
assertion  of  defendants*  title,  exclusive  of 
all  rights  of  every  nature  in  otiier  parties, 
and  was,  in  effect,  notice  to  the  owners  of 
complainants'  lot  (jf  sucii  assertion.  But 
I  cannot  so  consider  it,  and  do  not  think 
the  owner  of  comi)lainants'  lot  was  calie<l 
upon  to  so  construe  it.  The  inclosure  of 
the  locus  intei-fered  in  a  very  slight  degree, 
if  at  all,  with  the  exercise  of  the  easement 
in  question,  and  the  familiar  rule  is  (and 
it  is  applicable  here)  that  theextent  of  tlie 
right  acquired  by  ad  verse  use  is  the  extent 
of  the  actual  user.  Then  it  is  impossible 
to  eliminate  from  the  problem  the  object 
of  the  inclosure,  as  well  as  the  location  oi 
the  first  building  within  it.  The  school 
lot  as  inclosed  is,  in  shape,  the  south  east 
half  of  a  s(juare  bisected  by  a  line  i-unning 
diagonally  across  it  from  noi'th-ea.st  to 
south-west,  with  a  part  of  the  n«n-therly 
point  cut  off.  Newton  avenue  ran  by  the 
longer  side  of  it,  and  the  school-house 
faces  this  avenue,  and  is  about  in  the  mid- 
dle of  the  lot.  The  ground  at  the  .sides 
and  rear  is  used  as  a  play-ground.  Now, 
a  considerable  space  of  open  ground 
around  a  school-house  is  usual,  and,  I 
may  add,  is  almost  a  necessity;  so  that 
one  would  hardly  expect  a  .school-house  to 
be  erected  without  suitable  gnuinds  sur- 
roundiiig  it.  In  this  instance  the  space 
left  around  the  present  school-iiouse  does 
not  seem  too  large  for  that  i)urpose. 
I^ooking  at  a  map  of  these  premi.ses  as 
they  have  existed  since  1^.5(>.  and  observing 
the  size  of  the  ground  inclosed,  I  think  one 
would  hardly  susjioct  that  the  school  au- 
thorities would  ever  desire  to  occujiy  any 
])art  of  it  for  any  additional  building  for 
school  |)urposes.  The  south-west  end  of 
t':ei)i'()p()sed  newbuilding  will  reach  \\ith- 
in  10  feet  of  the  old  one;  its  front  will  be 
oidy  8  feet  distant  from  the  sidewalk  of 
Newton  avenue,  and  its  north-east  end  will 
almost  touch  tin*  liiieof  complainants'  lot, 
leaving  an  unusually  small  amount  of 
open  ground  around  it.  I  do  not  think  that 
the  inclosure  of  K>i'>,  with  the  subsecjuent 
use  of  the  lot,  can  be  construed  as  notice 
to  the  owners  of  complainants'  lot  that  at 
some  future  daj'the  locus  in  dispute  would 
be  used  as  a  site  for  a  school-house.  On 
the  contrary.  I  think  it  would  rathei"  be 
notice  that  it  would  not  be  so  used.  I 
think  the  owner  of  complainants'  lot  may 
well  have  thought  and  saiil :  "I  care 
nothing  for  the  right  of  passage  over  this 
alley,  and  do  not  object  to  its  inclosure. 
Its  inclosure  and  use  as  a  play-ground 
does  not  interfere  with  the  ligltt  and  air 
from  it.     So  I  am  content." 

Counsel  for  the  defendants   invoked    the 
aid  of  what  is  called    the  "balance  of  con- 


62 


LIGHT  AND  AIH. 


renience"  rule,  ihey  pointeri  out  tiie 
ffi"eat  injury  which  the  defendants  would 
suffer  from  an  interrui»tion  of  the  execu- 
tion of  theirplans,  by  which  they  arebound 
in  contract,  and  the  comparatively  slii?ht 
injury  to  the  complainants.  But  I  do  not 
understand  that  the  rule  appealed  to  ap- 
plies here.  Thefacts  upon  whichcomplain- 
ants'  ri;^ht  rests  are  dear  and  undisputed. 
The  rights  of  thecoinplainants  arising  out 
of  those  facts,  I  think,  are  equally  clear, 
and  have  been  recognized  by  our  highest 
ct^urt.  The  case  has  reached  the  stage 
of  tinal  hearing,  and  the  right  invaded  is  a 
riijht  of  property.  The  building  proposed 
to  be  erected  will  occupy  the  greater  part 
of  the  alley  adjoining  complainants"  prem- 
ises, and  it  was  admitted  that  it  would 
be  much  higher  than  the  fence,  whicli  has 
stood  so  many  years.  But.  were  the  ob- 
structit)n  much  less.  I  do  not  see  how  this 
court  could  refuse  relief  on  account  of  the 
smallness  of  the  injury.  To  leave  the  com- 
plainauts  to  their  remedy  at  law  (sup- 
posing that  it  exists)  would  be  to  say  to 
them  that  the\  must  part  with  their  prop- 
erty for  such  price  as  they  may  realize  out 
of  an  endless  series  of  actions  for  dam- 
ages,—a  result  entirely  contrary  to  right, 
justice,  and  equity.  This  court  has  fre- 
quently and  uniformly  exercised  its  juris- 
diction in  similar  cases,  and  enjoined  the 
threatened  injury.  Bechtel  v.  Cai-slake.  11 
N.  J.  Eq.  500;  Barnett  v.  Johnson,  supra; 
Riehle  v.  Heulings.  38  N.  J.  Eq.  I'O;  and 
Oawtry  v.  Leland.  40  N.  J.  Eq.  323, 
where  the  decree  of  this  court  was  af- 
tirmed,  on  appeal,  for  the  reasons  given  by 
the  vice-chancellur.  In  that  ca.se  there 
was  a  mere  encroachment  upon  a  private 
way,  not  amounting  to  a  complete  ob- 
struction, and  the  vice-chancellor  said: 
"It  is  not  a  question  of  convenience,  of 
how  much  space  is  suitable  for  the  com- 
plainant, but  one  of  right  under  the  cove- 
nant." This  last  case  is  the  only  one  of 
those  just  cited  which  was  noticed  by  the 
court  of  ai>peals  in  Hart  v.  Leonard.  42  N. 
J.  E(i.  416,  7  Atl.  Rep.  86.5,  in  the  classitica- 
tion  there  found  of  the  instances  in  which 
this  court  will  interfere  by  injunction  t)n 
final  hearing,  and  the  reference  to  the  cases 
in  which  it  has  so  done.  But  I  do  not 
construe  the  omission  of  the  others  as  at 
all  discrediting  tliem  as  authority.  In 
support  of  their  position  on  this  part  of 
the  case  the  defendants'  counsel  relied  up- 
ou  Zabriskie  v.  Railroad  Co.,  13  N.  J.  Eq. 
314;  Railroad  Co.  v.  Prudden,  20  Zi.  J.  Eq. 
541;  Higbee  v.  Railroad,  etc..  Co.,  Id.  435; 
Dodge  V.  Railroad  Co..  43  N.  J.  Eq.  3.51.  11 
Atl.  Rej).  751.  I  have  carefully  examined 
each  of  them.  They  are  clearly  distinguish- 
able from  the  case  in  hand.  In  the  finst 
case  the  comi)laint  was  that  the  h(U'se- 
railroad  track  was  laid  close  to  the  line  of 
the  sidewalk,  instead  of  the  middle  of  the 
street,  and  its  use  would  i)revent  access 
to  complainants"  abutting  land.  The  in- 
junction was  refuseil  on  tlie  ground  that 
no  imi)rove!nents  were  yet  made  on  com- 
plainanta'  lot,  and  that,  until  that  was 
done,  no  injury  resulted,  and  that,  in  the 
mean  time,  it  was  not  worth  while  to  stop 


the  running  of  the  cars.  In  the  Frudden 
and  Higbee  Cases  the  relief  was  refused  on 
the  ground  that  the  complainants  had,  in 
each  case,  accjuiesced  in  the  placing  of  the 
railroad  in  the  street  in  front  of  their  sev- 
eral lots,  and  in  the  Higbee  Case  to  the 
placing  of  tlie  station  tJiere  also.  In  the 
Prudden  Case  the  laying  tlie  addition;il 
track,  the  injury  threatened,  was  author- 
ized by  the  company's  charter,  and  the 
court  held  that  it  must  presumably  have 
been  contemplated  by  the  complainant  in 
his  ac(]uiescence;  and  in  the  Higbee  Case 
the  addition  of  a  platform  to  a  station 
was  placed  in  the  same  category.  In  both 
cases  the  remedy  at  law  was  reserved  to 
tlie  complainants,  and  in  the  Prudden 
Case,  (page  .540.)  the  resort  to  this  court 
if  the  injury  proved  serious.  In  Dodge  v. 
Railroaci  Co.  the  part  of  the  street  about 
to  be  obstructed  had  been  vacated  by  the 
proper  authorities,  and  comi)Iainants, 
whose  land  did  not  abut  on  the  point 
vacated,  fell  back  on  the  original  dedica- 
tion by  the  previous  owner  of  their  land. 
But  it  turned  out  that  such  previous  own- 
er had  in  some  way  conveyed  the  part  of 
the  street  vacated  to  the  railroad  com- 
pany before  he  conveyed  to  the  complain- 
ant, who  was  held  bound  by  such  previous 
conveyance.  Besides,  in  both  the  Prudden 
and  the  Dodge  Cases,  there  was  fouud  the 
additional  question  whether,  where  the 
private  right  of  the  abutting  owner  upon 
a  dedicated  street,  which  exists  jjrior  to 
its  acceptance  by  the  public,  has  merged, 
so  to  si)eak.  upon  its  acceptance,  in  the 
higher  public  right,  such  private  right  re- 
vives upon  a  vacation  of  a  street,  which 
question  was  an  unsettled  one  in  this 
state.  Defendant  also  called  attention  to 
the  location  of  complainants'  h«)use,  and 
to  the  state  of  the  proofs  as  to  its  win 
dows.etc.  I  understood  it  to  be  admitted 
at  the  hearing  that  it  stooil  opposite,  or 
nearly  so.  to  the  points  of  nearest  ap- 
proach of  the  proposed  new  school-house. 
But  I  do  not  conceive  that  the  present  lo- 
cation orcoiidition  of  complaina:)ts'  house 
has  the  least  effect  upon  their  rights. 
Those  rights  do  not  arise  from  the  use  of 
windows  in  their  houseofa  particular  size 
and  location,  or.  indeed,  of  any  windows, 
or  even  a  house  at  all.  Those  rights 
would  be  the  same  if  no  house  had  ever 
been  erected  on  their  lot.  Complainants 
have  the  right,  at  their  pleasure,  to  erect 
a  building  covering  the  ^vhole  of  their  l<jt, 
and  to  i)lac'^  in  it  such  oi)enings  as  they 
choose  on  the  side  next  this  alley,  and  to 
have  the  benefit  of  the  light,  air.  and  ven- 
tilation to  be  derived  from  it,  ami  th.it 
wholly  irrespective  of  the  mode  and  ex- 
tent of  which  they  have  heretofore  en- 
joyed it. 

The  conclusion  at  which  I  have  arrived 
is  contrary  to  my  first  imi>ression8,  and 
that  circumstance,  together  with  the  pub- 
lic character  of  the  inteiests  incidentally 
involved,  have  led  me  into  stating  ni3'  rea- 
sons at  a  perhaps  unnecessary  length.  I 
think  the  com[)lainants  are  entitled  to  the 
relief  prayed  for,  and  I  will  advise  a  decree 
acconlingly. 


WATER. 


63 


FALLS  MAXUFG  CO.  t.  OCONTO  RIVER 
IMP.  CO.  et  al. 

(58  X.  W.  2.57,  87  Wis.  l.*^4.) 

Supreme  Court  of  Wisconsin.      Fel).  2.'*,  1S94. 

Appeal  from  circuit  coiirt,  Oconto  county; 
Samuel  D.  Hastings,  Jr.,  Judge. 

Action  by  the  Falls  Manufactiu'ing  Com- 
pany against  the  Oconto  River  Improvement 
Company  and  others.  There  was  a  judg- 
ment for  defendants,  and  plaintiff  appeals. 
Affirmed. 

The  other  facts  fully  appear  in  the  follow- 
ing statement  by  CASSODAY,  J.: 

This  action  was  commenced  September  28, 
1891,  to  perpetually  restrain  the  defendants 
from  interfering  with  or  interi-upting  the 
natural  flow  of  the  Oconto  river  at  the  plain- 
tiff's pulp  mill  and  milldam,  so  as  to  impair 
the  tisefulne.^s  of  its  water  power,  and  for 
$15,000  damages  already  caused  in  1891,  prior 
to  the  commencement  of  this  action,  by  the 
wrongful  acts  complained  of,  and  such  dam- 
ages as  should  accrue  thereaft(>r  during  the 
pendency  of  this  suit,  and  for  costs.  The  an- 
swer consists  of  admissions,  denials,  and 
counter  allegations,  and  justifies  under  certain 
acts  of  the  legislatm-e  of  this  state.  At  the 
close  of  the  trial  the  court  found,  as  matters 
of  fact,  in  effect:  That  the  Oconto  river, 
from  its  mouth  to  the  junction  of  its  north 
and  south  branches,  a  distance  of  50  miles, 
is  a  meandered  stream  of  the  average  width 
of  100  feet.  That  its  branches  were  said 
north  and  south  branches,  the  Waupee  and 
McCauslin's  brook,  which  tlow  into  the  north 
branch,  Peshtigo  brook,  which  flows  into 
the  main  river  just  below  tue  jtmction,  and 
Little  river,  which  flows  into  the  main  river 
below  Stiles.  That  the  city  of  Oconto  is  sit- 
uated near  the  mouth  of  the  main  river;  that 
Stiles  is  10  miles  above  the  mouth  of  the 
river.  That  Oconto  Falls,  where  the  plain- 
tiff's mills  and  dams  are  situated,  is  about 
10  miles  abovt'  said  mouth.  That  Flat  Rock 
dam,  owned  and  operated  by  the  defendants, 
is  about  ;^0  miles  above  the  mouth  of  the 
river,  and  20  miles  below  the  junction.  That 
the  Oconto  river  and  its  branches  are  sub- 
ject to  fluctuations  in  the  height  and  volunse 
of  water.  That  there  is  a  period  of  high 
water  or  freshet  on  said  stream  and  its  trib- 
utaries each  spring,  lasting,  ordinarily,  from 
about  the  middle  of  April  to  about  June  1st. 
That,  in  addition  to  such  freshets,  there  is 
usually  a  rise  of  water  in  June,  and  occa- 
sionally in  September,  which  are  much  less 
in  extent  than  the  spring  freshets,  and  last 
only  about  two  weeks.  That  the  average 
natm-al  flow  from  the  junction  of  the  north 
and  south  branches  to  the  mouth  of  the  river, 
dmnng  spring  freshets,  is  from  85,000  to  100,- 
000  cubic  feet  of  water  per  minute.  That  an 
ordinary  stige,  when  there  are  no  freshets, 
is  about  25,(M)0  to  3O,0(J0  cubic  feet  per  min- 
ute. That  during  extreme  low  water,  such 
as  occtirs  ouce  or  twice  in  a  lifetime,  and 
did  in  1891,  it  is  about  from  13,000  to  10,000 


cubic  feet  per  minute.  That  the  natural 
flow  fluctuates  above  and  below  .said  quan- 
tities, and  during  November,  1891.  it  so  fluc- 
tuated from  about  i:i,0<J<J  to  23,000  cubic  feet 
per  minute,  and  the  average  flow  was  about 
20,(K)0  cubic  feet  per  minute.  That  in  its 
natural  state,  without  the  aid  of  dams,  said 
river  had  a  capacity  to  usefully  and  proHt- 
ably  transport  on  Its  waters,  from  the  jime- 
tion  to  its  mouth,  during  the  sjiring  freshets, 
about  20,<KM),()iKj  feet  of  tindier  annually. 
That  in  said  distance  there  are  various  rapids 
and  places  of  shoal  water,  over  which  logs 
will  not  float  without  help  in  the  natural 
state  of  the  river,  .save  during  freshi-ts.  That 
there  are  other  places  where  the  smaller  l<igs 
will  float  at  ordinary  or  low  stages  of  the  wa- 
ter for  short  distances,  but  such  places  are  not 
of  sufticient  length  to  make  the  river  prac- 
ticably navigable  for  log  driving  dm-ing  such 
stages,  without  floods.  That  such  June  and 
September  froshets  are  not  of  sutlicieut  vol- 
ume or  duration,  in  the  natural  state  of  the 
river,  to  float  logs  to  any  considerable  ex- 
tent, but  are  sufficient  to  float  them  to  some 
extent  with  the  aid  of  wing  dams,  horses, 
and  other  devices  u.sed  by  log  drivers,  but 
are  not  usually  sutficient  to  render  the  stream 
practically  navigable  for  logs  during  th«'ir 
continuance,  without  the  aid  of  flooding 
dams.  That  by  their  natural  flow  only  at 
least  20,(KJ0,000  feet  of  logs,  in  the  ag;;re- 
gate,  can  be  natiu-ally  floated  down  the  north 
and  south  branches.  Waupee,  and  Pohiigo 
brook,  into  said  river  below  the  jimction,  dur- 
ing the  spring  freshets,  but  no  logs  can  be 
thus  floated  down  McCauslin's  brook  witliout 
the  use  of  dams.  That  logs  can  thus  be 
ttoatetl  down  the  north  branch  at  least  20 
or  30  miles,  s:iid  south  branch,  12  or  15 
miles,  said  Waupee,  2  or  3  miles,  and  said 
Peshtigo  brook,  25  miles.  That  logs  can  be 
floated  down  .said  south  branch  to  below  the 
junction,  by  the  natural  flow,  only,  at  ordi- 
nary stages  of  water,  a  dLstJUice  of  about 
12  miles,  with  the  aid  of  wing  dams,  tem- 
porary dams,  and  a.ssistance  from  log  driv- 
ers working  on  the  logs  in  the  stream.  That 
it  would  bo  p(-.sible  at  such  stages,  by  sui-h 
means,  to  drive  some  of  the  smaller  logs 
from  the  junction  to  the  mouth  of  the  river, 
but  such  driving  could  not  be  done  with  any 
prolit  to  the  log  owners.  That,  prior  to  log 
driving  on  the  river,  there  were  tribtitary 
to  it  and  its  branches  about  .•i,()(H»,(HHMH)().(HK) 
feet  of  pine  timber,  and  a  large  quantity  of 
other  floatable  timber.  That  about  2.;;o0.- 
(>;)().(::)(>.( MM)  feet  of  pine  were  above  the 
plaintiff's  mills  at  Oconto  Falls,  and  about 
2,7(H»,n(K),(,KM),<MM)  feet  above  the  defendant's 
structures  at  Flat  Roi-k  dam.  That  in  1851 
abi)Ut  l,OO0,tM)0  feet  of  pine  logs  were  driven 
down  the  Oconto  from  above  Flat  Rock 
dam,  and  near  the  junction,  to  the  city  of 
Oconto,  during  the  spring  freshet,  witlmut 
the  aid  of  improvements.  That  from  1851 
the  quantity  thus  driven  without  such  aid 
betwtH?n  said  points  inirea.><tHl  from  yeai" 
to  year  to  about  25,000,000  feet  in   1858  or 


64 


WATER. 


1859.  That  about  1859  private  parties  be- 
{jan  to  biiikl  flooding  dams  on  said  branches 
above  the  junction  to  facilitate  the  drivinj; 
of  lojrs  down  the  same,  and  down  the  river 
from  the  junction,  after  the  sprinj;  fr(>shcts 
were  over,  whereby  the  natural  capacity  of 
the  stream  and  its  brandies  was  increased 
so  that  by  ISUG,  and  cheuce  to  1S72,  from 
GO.lWO.oao  to  75.000.000  feet  of  lojrs  were  an- 
nually driven  down  the  river  from  above 
Flat  Rock  dam  to  Stiles  and  the  city  of 
Oconto.  That,  in  the  early  years  of  log  driv- 
ing on  the  river,  most  of  the  logs  were  put 
in  between  Oconto  Falls,  where  the  plaintiff's 
mills  are  situated,  and  the  junction,  or  with- 
in a  short  distance  above  the  junction,  and 
were  largely  driven  down  the  river  to  their 
destination,  near  its  mouth,  on  the  spring 
freshets.  That,  as  logging  <)])erations  extend- 
ed up  said  branches,  the  iiroportion  of  logs 
floated  down  the  river  from  above  the  jimc- 
tion  increased  \mtil  now,  when  most  of  said 
logs  come  from  above  the  junction;  and.  as 
such  proportion  so  increased,  more  and  more 
of  said  logs  came  into  the  main  river  later 
in  the  season,  and  too  late  to  get  the  ben- 
efit, or  full  benefit,  of  the  spring  freshets, 
until  now,  when  but  a  small  part,  if  any, 
of  the  logs  get  below  the  junction  in  time 
for  such  freshets.  That,  as  the  proportion 
of  logs  thus  coming  to  the  main  stream  too 
late  for  the  spring  freshets  increased,  the  ne- 
cessity for  increased  facilities  for  floating 
them  down  the  stream  became  greater,  and 
for  that  purpose,  from  about  18()0  until  1S72, 
a  flooding  dam,  known  as  the  "Chute  Dam," 
was  built  about  25  miles  above  said  jiuic- 
tion.  on  aud  across  said  north  branch,  and 
was  used.  That  about  two-thirds  of  the  wa- 
ter passing  at  Oconto  Falls,  where  the  phiin- 
tilT's  mills  are  .situated,  comes  into  the  river 
below  said  Chute  dam.  That  Flat  Rock 
dam  was  built  in  1872,  and  is  a  flooding  dam, 
and  used  by  storing  the  water  of  the  river 
in  its  pond,  which,  when  full,  holds  about 
300  acres,  and  discharging  the  same  in 
greater  quantities  than  the  natiual  flow,  when 
there  are  no  freshets  to  aid  in  driving  logs 
and  timber  down  the  stream,  aud  in  sort- 
ing, handling,  and  deUvering  logs  below  the 
dam.  That  such  dams  are  the  usual  means 
of  driving  logs  on  logging  streams  of  north- 
ern Wisconsin.  That  the  Flat  Rock  dam  has 
been  so  used  each  year  since  1872.  such  use 
beginning  after  the  spring  freshets,  and  con- 
tiiuiing.  whenever  the  natural  flow  was  in- 
Kufticient  to  drive  logs,  until  the  river  froze 
in  the  fall.  That  in  such  use  the  discharge 
of  stored  water  is  called  the  "numing  of 
heads."  That  th^y  are  ordinarily  run  daily, 
but  sometimes  oftener,  and  sometimes  once 
in  two  days,  depending  upon  the  adequacy  of 
the  natural  flow  to  cre-ate  sufficient  heads 
for  driving.  In  running  heads,  the  gates  of 
the  dams  are  raised  from  six  to  ten  hours, 
and  then  closed  until  the  next  head  is  run. 
That  heads  reach  Oconto  Falls  in  about  four 
hours,  and  increase  the  natural  level  of  the 
water  there  from  one  to  three  feet,   or,   at 


their    highest   point,    to   about    the    ordinary 
level    of  the   spring    freshet.      That    the    in- 
crease at  Oconto  Falls  is  wholly  within  the 
banks  of  the  river,  aud  continues  for  about 
the   time  the   gates   at   Flat    Rock   dam   are- 
open  to  run  the  head.    That,  while  said  gates 
are  closed  between  heads,  the  flow  at  Oconto 
Falls  greatly  decreases,  until  it  is  much  less 
than  the  natural  flow,  aud  during  the  year 
1891  it  was  at   times  less   than  3.000  cubic 
feet  per  minute.     That  Flat  Rock  dam  was 
built  by  twc  Northwestern  Improvement  Com- 
pany, under  chapter  363,  P.  &  L.  Laws  18(!9. 
That  said  improvement  company,  about  the 
year  1809,  took  possession  of,  and  maintain- 
ed  and   operated,    until    the   year    1891,    the 
dams   and     improvements    existing   on     said 
branches  prior  to  1809,  built  other  dams  be- 
sides  the   Flat   Rock   dam,   and    spent   large 
sums    of   money    therein,    and    in    otherwise 
improving    said    river    and    its    branches    to 
facilitate  the  driving  of  logs  therein.     That 
Flat  Rock  dam  was  so  used,  in  conjunction 
with  other  improvements,  from  1872  to  1892, 
and    thereby    the    natural    capacity    of    said 
stream  was  so  increti.sed  that  from  00.0<».(XX) 
to  75,000.000  feet  of  logs  have  been  driven 
down  said  river  and   its  branches  annually 
oince  1872;    that    there   still    re.uain   on   the 
river  and  its  branches,  above  Flat  Rock  dam, 
500,000,0*J().000  feet  of  pine  and  300.000,000,- 
000  feet  of  other  timber,  all  tributary  to  the 
river  and  its  branchew.     That  floo<ling  dams, 
iised  as  such  Flat  Rock  dam  was  and  is  used, 
:'.re  necessary  to  make  the  transportation  of 
logs  and  timber  down  said  river  practicable 
after  the  subsidence  of  the  spring  freshets.       * 
That  it  is  customaiy  to  use  said  Flat  Rock 
dam  to  repeat  the  floods  created  by  its  heads, 
from    the    dams    on    the    tributaries    on    the 
Oconto  river  above  Flat  Rock  dam,   in  the 
rimniug  of  logs  from    said    Flat   Rock   dam 
past  the  plaintilT's  mills,  and  to  the  mill  slides 
of  the  several  sawmills  at  the  city  of  Oconto, 
and  it  was  so  used  in  1891  and  1892.     That 
while  Volk  was  running  said  mill,   prior  to 
1885,    the   defendant    the    Northwestern    Im- 
provement Company  did  a  large  amount  of 
blasting  in  the  falls  at  Oconto  P"'alls,  consti- 
tuting, in  part,  said   water  power,  to  facili- 
tate the  passage  of  logs  over  said  falls.    That 
said  Volk  made  no  oi)j(>ction  to  said  blasting 
aud     improvement.      That     April,    1884,    the 
plaintiff:'  became  the  owner  of  a  one-half  in- 
terest in  the  Volk  dam.     That  in  1888  the 
plaintiff  acquired  the  whole  interest  in  that 
dam  and  water  power,  and  owns  numerous 
mills    constructed    thereon    before    the    com- 
mencement of  this  action.     That  before  the 
plaintiff  purchased  any  interest  in  the  water 
power  it  knew  that  the  river  was  a  log-driv- 
ing sti-eam,  aud  before  it  built  its  first  mill 
it  knew  that,  in  driving,  its  natural  flow  at 
Oconto  Falls  was  interfered  with  by  flooding 
dams,  substantially  as  it  had  been  since  1872 
and  was  in  181)1  and  1S!)2.  and  it  built  each 
of   said    mills    with   such    knowUnlge.      That 
from  1885  to  1891   the  plaintiff  complained, 
from  time  to  time,  to  individual  directors  of 


WATER. 


65 


the  defendant  Northwestern  Improvement 
(Jorapany,  that  the  use  of  the  Fhit  Rock 
(liim  interfered  with  the  use  of  its  water 
1)0 wer,  and  in  1S91  made  similar  complaint 
to  the  Oconto  River  Improvement  Company. 
That  the  value  of  the  plaintiff's  water  power 
plant  is  about  $200,000.  That  the  interrup- 
tion of  the  plaintiff's  business,  caused  by  j 
the  runuin?:  of  said  heads,  was  a  damage  of 
$2,500  in  1891,  and  $500  in  1892.  As  conclu- 
sions of  law  the  com-t  found,  in  effect,  that 
the  Oconto  river  is  a  naviiijahle  stream  and 
a  public  hifjhway  for  the  transportation  of 
loss  and  timber  from  above  Flnt  Rock  dam 
to  its  mouth;  that  Flat  Rock  dam  is  an  au- 
thorized means  for  the  improvement  of  said 
navigation,  and  the  Oconto  River  Improve- 
ment Company  had  the  right  to  use  it  as  it 
did  in  1891  and  1892,  paramoimt  to  the  plain- 
tiff's right  to  hydraulic  power;  that  the  de- 
fendants are  entitled  to  judgment  dismissing 
the  plaintiff's  complaint,  with  costs.  From 
the  judgment  entered  thereon,  accordingly, 
August  29,  1893,  dismissing  the  plaintiff's 
complaint,  with  costs,  the  plaintiff  brings 
this  appeal. 

H.  O.  Fairchild  and  Hooper  &  Hooper,  for 
appellant.  Greene  &  Vroman,  for  respond- 
ents. 

CASSODAY,  J.,  (after  stating  the  facts.) 
This  case  comes  before  us  upon  the  findings 
of  the  court,  and  so  there  is  no  dispute  about 
the  facts.  The  plaintiff's  milldam  and 
manufacturing  plant  were  constructed  im- 
der  legislative  authority,  and  are  of  gi'eat 
value.  They  are  situated  IG  miles  above 
the  mouth  of  the  river,  and  have  always 
been  used  exclusively  for  manufacturing  pur- 
poses. The  stjitutes  authorizing  the  same 
have  at  all  times  required  the  projirietor  to 
maintain  in  the  dam  a  chute  or  slide  suffi- 
ciently deep  and  wide  to  allow  the  passage 
of  logs  coming  down  the  river.  The  same 
is  true  of  other  dams  above  and  below  the 
plaintiff's  dam,  owned  by  those  not  parties 
to  this  action.  One  of  such  dams  is  situ- 
ated six  miles  below  the  plaintiff's,  and  has 
been  tised,  in  part,  for  flooding  pm'poses  to 
aid  in  driving  logs  on  the  river.  In  18(57  the 
legislature  made  it  a  criminal  offense  for  any 
person,  at  any  time  or  in  any  manner,  neg- 
ligently or  with  design,  to  put,  or  cause  to 
be  put,  into  the  Oconto  river,  in  Oconto  coun- 
ty, any  refuse  lumber,  slabs,  sawdust,  or 
other  waste  materials  to  an  extent  that 
should  materially  hinder  or  obstruct  naviga- 
tion. Chapter  50(5,  P.  &  L.  Laws  1807. 
Flat  Rock  dam  is  the  principal  sti'uctm-e  of 
the  defendants,  and  is  situated  14  miles 
above  the  plaintiff's  dam.  It  was  first  con- 
structed under  chapter  308,  P.  «&.  L.  Laws 
1809.  which  authorized  the  defendant  the 
Northwestern  Improvement  Company  and  its 
successors  to  improve  the  portions  of  the 
Oconto  river  and  its  brandies  and  tributaries 
described,  by  blasting  rocks,  dredging,  and 
ditching  in  the  several  channels  within  such 

VAN  ZILE,SEL.C.\S.rEUS. — 5 


limits,  and  by  constructing  dams,  wing  dams, 
booms,  side  booms,  chutes,  or  slides,  and  by 
all  other  proper  means  for  making  the  same 
navigable  for  the  driving  of  sawlogs;  and 
for  that  purpose  the  company  was  thei  cliy 
expressly  authorized  to  entirely  close  any 
slough,  bayou,  or  channel  so  as  to  prevent 
the  diversion  of  water  from  the  channel  so 
improved,  and  to  charge  and  collect  tolls  for 
all  logs  or  timber  run  through  such  improve- 
ments, at  the  rates  therein  specified.  By 
the  act  of  congress  of  July  12,  187<3,  consent 
was  expressly  given  to  the  defendant  the 
Northwestern  Improvement  Company  "to 
improve  the  Oconto  river  and  its  branches 
and  tributaries,  so  as  to  run  logs  down  said 
river  and  its  branches  and  tributaries,  across 
the  Menomonee  Indian  reservation,  in  accord- 
ance with  the  laws  of"  Wisconsin,  .subject  to 
the  conditions  tliereln  named.  19  Stat.  89. 
December  31,  1890,  the  defendant  the  Oconto 
River  Improvement  Company  was  incorporat- 
ed imder  chapter  SG,  Rev.  St.,  and  the  amend- 
ments thereto,  for  the  purpose,  as  expressed 
in  its  articles  of  incorporation  and  charier,  of 
improving  the  Oconto  river  and  its  branches, 
and  driving,  sorting,  and  delivering  logs  and 
timber  therein,  as  provided  in  said  chapter. 
The  formation  of  such  corporations  is  there- 
in expressly  authorized  for  the  purpose  of 
the  "improvement  of  rivers  and  streams,  and 
for  driving,  sorting  and  delivering  logs  or 
timber."  Sanb.  &  B.  Ann.  St.  §  1771.  It  is 
further  expressly  jtrovided  in  that  chapter 
that  any  corporation  formed  thereunder  "in 
whole  or  in  i)art  for  the  improvement  of  any 
stream  and  driving  logs  therein  and  for  hold- 
ing or  handling  logs  therein,  which  shall 
have  taken  prior  possession  of  such  stream 
for  that  purpose,  shall  have  power  to  im- 
prove such  stream  and  its  tributaries,  by 
cleaning  and  straightening  the  channels 
thereof,  closing  sloughs,  erecting  sluice-ways, 
booms  of  all  kinds,  side  rolling  and  flooding 
dams  or  otherwise,  if  nece.ssjiry;  but  shall 
in  no  case,  in  any  manner,  materially  ob- 
struct or  impede  navigation  upon  such 
streams,  or  erect  any  dam  or  other  obstnic- 
tion  below  the  head  of  steamboat  naviga- 
tion, or  obstruct  any  navigable  slough,  ex- 
cept with  the  written  consent  of  the  owners 
of  the  entire  shores  on  both  sides  thereof." 
Sanb.  &  B.  Ann.  St.  §  1777.  The  same  sec- 
tion not  only  authorizes  such  corporation  to 
take  charge  of  logs  at  the  request  of  the 
owner,  but,  under  certain  conditions  men- 
tioned, to  take  possession  of  any  and  all  logs 
put  into  such  stream,  and  to  drive  the  same 
to  their  resi)ective  destinations;  and  also  ex- 
pressly provides  that  "no  injunctional  order 
shall  be  granted  to  prevent  the  use  or  enjoy- 
ment of  any  such  improvement,  or  abate  any 
such  dam  necessary  thereto,  unless  such  cor- 
iwration  shall  fail  for  sixty  days  after  judg- 
ment to  pay  any  damagi's  recovered  for  any 
injury  done  by  or  in  consequence  of  its 
works."  Id.  .January  27,  1891,  the  defend- 
ant NorthwestiM-n  Improvement  Comi);iny 
conveyed  to  the  defendant  Oconto  River  Im- 


06 


WATER. 


provemont  Company  the  Flat  Rock  dam  and 
all  its  improvements  on  the  river  and  its 
branches;  and  that  company  has  since  op- 
onited  the  same  substantially  as  before,  to 
drive  annually  substantially  the  same  quan- 
tity of  logrs.  There  is  no  claim  that  the  de- 
fendants have  at  any  time  improperly  op- 
erated their  flooding  dam,  nor  that  they  have 
exceeded  the  powers  thus  given  to  them  by 
the  several  statutes  mentioned.  The  con- 
tention is  that  the  plaintiff  is  also  acting  un- 
der statutory  authority,  prior  in  time,  and 
that  the  rights  of  the  respective  parties  are 
correlative;  in  other  words,  the  contention 
is  that  the  defendants  cannot  so  operate 
their  flooding  dam  as  to  impair  the  efficiency 
of  the  plaintiff's  water  power.  As  indicated 
in  the  foregoing  statement,  the  flooding  dam 
is  14  miles  above  the  plaintiff's  water  power. 
Of  com-se.  the  plaintiff  has  no  title  or  owner- 
ship to  any  of  the  particles  of  water  at  the 
flooding  dam,  nor  anywhere  in  the  river. 
Lawson  v.  Mowry,  52  Wis.  2.34.  9  X.  W.  2S0. 
It  is  the  use  of  water  while  passing  that 
gives  it  value.  Id.  It  is  only  the  interfer- 
ence with  such  use  by  the  plaintiff  that  is 
here  complained  of.  One  of  the  purposes  of 
the  floo<liug  dam  is  to  detain  the  water,  from 
time  to  time,  when  the  stream  is  low,  until 
a  sufficient  qtiantity  has  accumulated  to  suc- 
cessfully float  the  logs  to  their  destination, 
and  then  to  let  off  the  same  in  larger  volume. 
When  so  detained,  it  frequently  diminishes 
the  water  power  at  the  plaintiffs  mills  so 
as  to  prevent  some  of  them  from  running  at 
all.  or  at  their  full  capacity.  It  is  the  in- 
jury resulting  from  such  detention  of  water  ! 
that  is  here  made  the  principal  ground  of 
comphiint.  Counsel  for  the  plaintiff  here  in- 
voke the  equitable  powers  of  the  court  to 
prevent  such  intermittent  increase  and  de- 
crease in  the  flow  of  the  water  at  its  miU, 
and  to  regulate  the  rights  of  the  respective 
parties  in  regard  to  such  flow.  Undoubted- 
ly, in  a  proper  case,  equity  will  interpose 
to  regulate  the  common  use  of  water,  to  de- 
termine the  extent  of  conflicting  claims  there- 
to and  The  proper  mode  of  exercising  and  en- 
joying such  rights,  as  tending  to  prevent 
litigation,  and  affording  a  more  complete  and 
perfect  remedy  than  could  be  obtained  at 
law.  Lawson  v.  Woodenware  Co..  59  Wis. 
398.  18  N.  W.  440.  In  support  of  such  con- 
tentions, counsel  cite  numerous  adjudications 
from  other  states,  and  also  seem  to  rely  upon 
two  cases  decided  by  this  coiu-t.  Miller  v. 
Sherry.  65  Wis.  129,  26  N.  W.  612;  A.  C. 
Conn  Co.  v.  Little  Suamico  Lumber  Manuf'g 
Co.,  74  Wis.  652,  43  N.  W.  660.  In  neither 
of  these  cases  was  the  question  of  statutory 
authority  involved.  The  controlling  fact  here 
pivsent  is  that  the  flooding  dam  and  other 
improvements  of  the  defendants  were  con- 
structed under  statiitory  authority,  at  great 
expense,  for  the  express  purpose  of  aiding  in 
the  transportation  of  sawlogs  and  timber 
on  the  Oconto  and  its  several  branches  and 
their  tributaries.  If  such  st;itutes  are  valid, 
and  the  defendants  do  not  transcend  the  au- 


thority thereby  given,  and  the  stream  is  con- 
fined within  its  banks,  then  it  would  seem 
the  defendants  are  at  liberty  to  operate  the 
flooding  dam  for  the  purposes  mentioned, 
regardless  of  whether  it  increases  or  dimin- 
ishes the  volume  of  the  stream  at  the  plain- 
tiff's mills  14  miles  below. 

The  law,  as  settled  by  a  long  line  of  deci- 
sions in  this  state,  is  that  streams  of  suffi- 
cient capacity  to  float  logs  to  market  are  nav- 
igable. Weatlierby  v.  Meiklejohn,  56  Wis. 
76,  13  N.  W.  697.  and  cases  there  cited;  A.  C. 
Conn  Co.  v.  Little  Suamico  Lumber  Manuf'g 
Co.,  74  Wis.  655.  43  X.  W.  660.  Tliese  cases 
treat  such  streams  as  public  highways  or 
waterways.  In  the  case  last  cited,  Cole,  C. 
J.,  said:  "The  real  test  to  determine  whether 
the  stream  is  a  public  highway  is  not  the  fact 
that  it  has  been  meandered  and  returned  as 
uavigaljle,  but  whether  it  is  navigable  in 
fact, — capable  of  being  used,  and  actually 
used,  for  floating  lumber  and  logs  and  other 
products  of  the  country  to  mill  and  market. 
If  it  is,  it  is  then  a  public  highway.  So  that, 
where  a  stream  is  in  fact  usefully  navigable 
in  this  manner,  all  the  rights  of  the  public 
attach,  and  no  obstniction  can  be  placed 
therein  without  legislative  permission."  We 
are  told  by  counsel  that  it  is  an  unfortunate 
misnomer  to  call  such  streams  navigable,  be- 
cause they  do  not  bear  ships  upon  their  bos- 
oms. Of  covu"se,  they  are  not  navigable  to 
the  extent,  nor  in  the  sense,  that  Lake  Mich- 
igan or  Green  Bay  or  the  Mississippi  river 
are  navigable,  but  that  does  not  prevent 
their  being  navigable.  "In  the  United  States, 
the  legal  meaning  of  'navigalde'  has  been 
much  extended,  and  it  includes,  generally, 
all  waters  practically  available  for  floating 
commerce  by  any  method,  as  by  rafts  or 
boats."  Cent.  Diet.  Thus,  in  The  Montello, 
20  Wall.  430,  it  was  held  that  the  navigabili- 
ty of  a  stream  does  not  depend  upon  the 
mode  by  which  commerce  is  conducted  upon 
it,  nor  upon  the  difficulties  attending  the 
navigation,  but  upon  the  fact  whether  the 
stream,  in  its  natural  state,  is  such  as  to  af- 
ford a  channel  for  useful  commerce.  That 
doctrine  was  in  that  case  applied  to  the  Fox 
river,  which  originally  was  not  fitted  for  use- 
ful commerce,  but  was  only  navigated  by 
Durham  boats.  The  act  of  congress  men- 
tioned, provided  that  the  Menomonee  "In- 
dians and  all  other  persons  shall  be  permit- 
ted to  use  said  river  for  the  purpose  of  run- 
ning logs,  as  contemplated  in  this  act,  and 
the  charges  for  s;\id  privileges  shall  be  regu- 
lated by  the  legislattire  of  the  state  of  Wis- 
consin." The  acts  of  the  legislature  referred 
to  treat  the  Oconto  as  a  navigable  river. 
The  findings  of  the  trial  court  conclusively 
determine,  so  far  as  this  case  is  concerned, 
that  the  river  and  its  branches  are.  as  a 
matter  of  fact,  public  navigable  water  ways 
for  the  transportation  of  logs  and  timber,  as 
indicated.  Being  such  public  navigable  wa- 
ter ways,  the  legislatiu'e  must,  under  numer- 
otis  adjudications  of  this  court,  be  regarded 
as  having,  in  aid  of  such  navigation,  plenary 


WATER. 


67 


power  to  authorize  such  flooding  dams  and 
other  structures.  Improvement  Co.  v.  Man- 
son.  43  Wis.  255;  Boom  Co.  v.  Reilly,  44  Wis. 
295;  Id.,  46  Wis.  237,  49  N.  W.  978;  Cohn  v. 
Boom  Co.,  47  Wis.  314,  2  N.  W.  546;  Bor- 
chardt  v.  Boom  Co.,  54  Wis.  107,  11  N.  W. 
44U;  Association  v.  Ketchum,  54  Wis.  313.  11 
N.  W.  551;  Edwards  v.  Boom  Co.,  67  Wis. 
403,  30  N.  W.  716.  In  Black  River  Imp.  Co. 
V.  La  Crosse  B.  &  Transp.  Co.,  54  Wis.  659, 
11  N.  W.  443,  it  was,  in  effect,  held  that 
in  aid  of  such  navijration  the  legislature  had 
legally  authorized  the  closing  up  of  Black 
Snake  river,  a  branch  of  the  Black  river, 
even  though  it  incidentally  injured  private 
persons.  To  the  same  effect.  South  Carolina 
V.  Georgia,  93  U.  S.  4.  In  lluudle  v.  Canal 
Co.,  14  How.  80.  the  efficiency  of  the  water 
power  was  very  much  impaired,  if  not  de- 
stroyed, by  the  canal  which,  under  statutory 
authority,  tapped  the  river  above  the  dam, 
but  it  was  held  that  the  owner  of  the  dam 
was  without  remedy.  Thus,  in  Improvement 
Co.  V.  Manson.  43  Wis.  265,  it  is  said:  '"The 
legislature  is,  pi-imarily  at  least,  the  judge 
of  the  necessity  of  the  improvement;  and 
when  it  delegates  the  power  to  a  corporation, 
and  the  state  does  not  question  that  the  im- 
provement made  by  the  corporation  is  in 
conformity  with  the  delegated  power,  it 
seems  to  us  that  neither  the  necessity  nor 
usefulness  of  the  improvement,  nor  the  man- 
ner in  which  it  is  made,  can  be  called  in 
question  by  private  parties."  To  the  same 
effect,  J.  S.  Keator  Lumber  Co.  v.  St.  Croix 
Boom  Corp..  72  Wis.  80--87,  38  N.  W.  529; 
Underwood  Lumber  Co.  v.  Pelican  Boom  Co., 
76  Wis.  85,  45  N.  W.  18.  The  same  doctrine 
has  been  repeatedly  sanctioned  by  the  su- 
preme com't  of  the  United  States.  Thus,  in 
Huse  V.  Glover,  119  U.  S.  543,  7  Sup.  Ct.  313, 
it  was  held:  "If,  in  the  opinion  of  a  state, 
its  commerce  will  be  more  benetited  by  im- 
proving a  navigable  stream  within  its  bor- 
ders than  by  leaving  the  same  in  its  natural 
Btate,  it  may  authorize  the  improvements, 
although  increased  inconvenience  and  ex- 
pense may  thereby  attend  the  business  of  in- 


I  dividuals."  So,  in  Sands  v.  Improvement 
Co.,  123  U.  S.  28.8,  8  Sup.  Ct.  113,  it  was  held, 
in  effect,  that  the  commerce  which  is  con- 
fined wholly  within  the  limits  of  a  particular 
i  state  is  subject  to  the  absolute  control  of 
I  such  state,  and  that,  to  encourage  the  growth 
i  of  such  commerce  and  render  it  safe,  such 
state  may  provide  for  the  removal  of  obstruc- 
j  tions  from  its  rivers  and  harbors,  and  deepen 
their  channels  and  improve  them  in  other 
ways,  and  exact  a  reasonable  toll  from  those 
who  use  the  same,  as  compensation  therefor; 
and  that  such  exaction  does  not  deprive  the 
pc^rson  paying  the  same  of  his  property 
without  due  process.  In  Bridge  Co.  v.  Hatch, 
125  U.  S.  1.  8  Sup.  Ct.  811,  it  was  held  that, 
until  congress  acts  respecting  navigable 
streams  entirely  within  a  particular  state, 
such  state  has  plenary  power  over  the  same. 
That  such  is  the  law  is  regarded  as  no  longer 
an  open  question  in  the  lato  case  of  Monon- 
gahela  x\av.  Co.  v.  U.  S.,  148  U.  S.  329,  XiO. 
'  13  Sup.  Ct.  622.  The  more  serious  question 
I  has  at  times  been  rai.sed  as  to  whether  the 
j  legislature  had  power  to  authorize  obstruc- 
tion to  such  navigation  in  such  streams,  in 
view  of  the  provisions  of  our  state  constitu- 
tion, which  declares,  in  effect,  that  "tlie  navi- 
gable waters  leading  into  the  Mississippi  and 
St.  Lawrence  and  the  carrying  places  be- 
tween the  same  shall  be  common  highways 
and  forever  free,  as  well  to  the  inhabitants 
j  of  the  state,  as  to  the  citizens  of  the  United 
States,  without  any  tax,  impost  or  duty 
therefor."  Section  1,  art.  9.  In  construing 
similar  clauses  in  the  enabling  acts  of  several 
of  the  states,  the  supreme  court  of  the  Unit- 
ed States,  in  some  of  the  cases  cited  and 
'  otliers,  liave  uniformly  held  that  it  does  not 
refer  to  physical  obstructions,  but  merely  to 
political  regulations  which  would  hamper  the 
freedom  of  commerce.  Bridge  Co.  v.  Hatch, 
125  U.  S.  1.  8  Sup.  Ct.  811,  and  ca.ses  there 
cited;  J.  S.  Keator  Lumber  Co.  v.  St.  Croix 
Boom  Corp.,  72  Wis.  62.  38  N.  W.  529,  and 
cases  there  cited.  It  is,  however,  unneces- 
sary to  determine  that  question  here.  The 
judgment  of  the  circuit  court  is  atfirmed. 


38 


WATER. 


PAGE  et  al.  v.  MILLE  LACS  LUMBER  CO. 

•      (5.5  X.  W.  60S.  53  Minn.  492.) 
(Supreme  Court  of  Minnesota.    June  12,  1S93. 

Appeal  from  district  court,  Mille  Lacs 
couuty;    Searle.  Judge. 

Action  by  E.  T.  Paae  and  otliei-s.  as  Page 
Bros.,  against  the  Mille  Lacs  Lumber  Com- 
pany. Defendant  had  judgment,  and,  from 
an  order  denying  a  new  trial,  plaintiffs  ap- 
peal,   lieversed. 

W.  Hammons.  for  appellants.  Eller  & 
How.  for  respondent. 

COLLINS.  J.  When  plaintiffs  rested  their 
case  upon  the  trial  the  court  dismissed  the 
same  on  the  ground  that  the  testimony  in- 
troduced was  insufficient  to  sustain  the  ac- 
tion. A  motion  for  a  new  trial  was  after- 
wards denied,  and  the  questions  involved 
are  before  us  on  a  bill  of  exceptions.  From 
this  bill  it  appears  that  both  parties  have 
been  engaged  in  lumbering  for  several  years 
upon  Rum  river,  a  stream  navigable  for 
logs  and  timber.  Both  parties  cut  their  logs 
on  the  upper  waters,  and  drive  them  to  their 
respective  mills,  there  to  be  manufactured 
into  lumber.  The  plaintiffs'  mill  is  at  Ano- 
ka, the  defendant's  about  75  miles  above 
it,  at  Milaca;  and  it  follows  that  plaintiffs' 
logs  must  be  driven  past  the  point  at  which 
defendant's  are  taken  from  the  stream  and 
manufactured.  The  only  practicable  way  in 
which  either  of  these  mills  could  be  sup- 
plied with  logs  was  by  driving  them  down 
the  said  river.  Just  above  its  mUl  the  de- 
fendant company  constructed  two  dams 
across  the  river,  about  a  half  mile  apart, 
the  natural  result  being  to  create  a  pond 
and  slack  water  above  each,  the  slack  water 
in  the  upper  pond  extending  about  3.000  feet 
above  the  upper  dam.  In  this  pond  the  dtv 
fend;iut  placed  piei*s.  piling,  and  boom  sticks, 
so  that  a  path  or  way  was  made  from  40 
to  70  feet  wide,  leading  from  about  where 
the  slack  water  began  directly  to  the  dam, 
and  crossing  the  original  channel  of  the 
stream  twice.  Side  booms  were  put  m  by 
defendant  on  either  side  of  the  way,  and  at 
a  convenient  place  a  sorting  gap.  and  all 
logs  coming  down  the  river  had  to  pass  men 
in  defendant's  employ,  stationed  at  the  gap, 
whose  business  it  was  to  guide  logs  bearing 
defendant's  marks  into  these  side  booms  for 
storage,  and  to  aUow  all  other  logs  to  pass 
on.  Between  the  dams  there  was  piling  and 
booms.  The  inevitable  rcsiilt  was  to  delay 
and  detain  plaintiffs"  and  all  other  logs  des- 
tined for  points  below  defendant's  mill.  In 
the  years  ISOO  and  ISOl  these  plaintiffs  were 
engaged  for  themselves,  and.  under  con- 
tract, for  other  persons,  in  making  what  is 
called  a  "clean  drive"  of  the  river.  It  is 
unnecessary  to  go  into  the  details  as  to  the 
exact  manner  in  which  it  was  done,  but  the 
testimony  produced  by  plaintiffs  on  the  trial 
tended  to  show  that  l>y  reason  of  the  piers, 
piling,  booms,  boom  sticks,  and  dams  before 


mentioned,  and  the  way  in  which  defend- 
ant's employes  performed  their  work  above 
and  at  the  sorting  gap.  and  appropriated 
the  river  for  the  storage  of  defendant's  logs, 
the  passage  of  the  logs  which  plaintiffs 
were  driving  was  unnecessarily  impeded  and 
obstructed,  and  that  plaintiffs  were  unrea- 
sonably and  oppressively  hindered  and  de- 
layed in  their  driving  operations,  to  their 
great  damage;  the  object  of  this  action  be- 
ing to  recover  the  amount  of  such  dam- 
ages. 

It  is  apparent  that  the  learned  trial  judge, 
although   convinced   that   by   reason   of   the 
maintenance    of    a    public    nuisance    in    the 
river    a    wrong    had    been    committed    for 
which    plaintiffs    should    have    redress,    felt 
constrained    to    dismiss    the    action    on    the 
authority  of  two  recent  cases    (Swanson  v. 
Boom    Co.,    42    Minn.    532.    44    N.    W.    Rep. 
9S6.    and    Lammers    v.    Brennan,    46    Minn. 
209.  4S  N.  W.  Rep.  706.)  and  we  are  obliged 
to   admit   that,   if   reliance   could   be   placed 
on   our  views  as  to   the  proper  application 
of  a  well-settled  rule  of  law  to  a  given  state 
of  facts  as  expressed  in   Swanson  v.  Boom 
Co.,    he    was    fully    justified    in    his    ruling. 
While  differing  somewhat  on  the  facts,  the 
present   case   cannot   be   distinguished   from 
I   that,   and   the  rule  there   announced   as   ap- 
I  plicable    and    controlling,    preventing    a    re- 
covery by  the  plaintiff.  If  rightly  appUed  ou 
that  occitsion,  would  be  equally  as  pertinent 
and  equally  as  determinative  on  this.    But 
we  are   now   convinced   that   an   error  was 
committed   in   the  application   to    the   facts 
in    the   Swanson    Case   of   the   salutary   and 
well-established  rule  that  an  individual  cao 
not  maintain   a  private  action  for  a  public 
nuisance  by  reason  of  any  injury  which  he 
suffers  in  common  with  the  pubUc,  and  that 
it  is  only  when  he  sustains  special  injmy  dif- 
fering in  kind,  not  merely  in  degree  or  ex- 
tent,   from    that    sustained    by    the    general 
public^   that  he  may   recover   damages  in    a 
private  action;    and  an  examination   of  the 
opinion  recently  tiled  in   Aldrich  v.    City  of 
Minneapolis,  53  N.  W.   Rep.   1072,  will  indi- 
cate  that   we  then  had   doubts  of   the   cor- 
rectness of  the  decision  in  Swanson  v.  Boom 
Co.    In    the    opinion   in    Aldrich    v.    City    of 
Minneapolis  most  of  the  cases  in  this  court 
bearing   on    the   subject,    and    many   others, 
were  referred  to  and  discussed,  and  we  are 
I   not   inchned   to   again   go  over  the  ground. 
!   It   is   obvious   that    there   has   been    a    very 
i   m>rked  conflict  of  opinion  in  the  application 
I  of  the  rules  pertaining  to  the  rights  of  pri- 
i   vate  parties  to  have   redress  in  private  ac- 
'   tions  when  injuries  have  grown  out  of  pub- 
i   lie  nuisances,  and  as  to  where,  on  the  facts, 
\   the  line  shotild  be  drawn.    This  conflict,  and 
i   that    the   adjudicated   cases    are   irreconcila- 
'   ble,  is  well  shown  in  Stetson  v.   Faxon.   19 
Pick.  147;    Farrelly  v.  City  of  Cincinnati,  2 
Disn.  516;  and  in  Wood.  Nuis.  c.  19.    That  a 
nuisance,  such  as  an  unreasonable  or  wanton 
obstruction  of  a  navigable  stream,  a  pubUc 
highway,  may  be  public  in  its  general  effect 


WATER. 


GD 


upon  the  public,  and  at  the  same  time  private 
as  to  those  individuals  who  suffer  a  special 
and  particular  damage  therefrom,  distinct 
and  apart  from  the  common  injury,  need 
not  be  demonstrated  by  illustration.  The 
public  wrong  inflicted  upon  all  persons 
must  be  redressed  by  a  public  prosecution, 
and  the  private  injury  by  an  appropriate 
private  action.  An  obstniction  to  a  high- 
way, although  it  be  an  infringement  upon 
the  rights  of  the  general  public,  in  the  na- 
ture of  a  public  nuisance,  may  be,  and  fre- 
quently is,  productive  of  special  and  partic- 
ular damage  to  a  private  individual;  and  it 
would  be  highly  unjust  and  inequitable  to 
say  that  he  has  no  right  of  redress  in  a 
private  action,  on  the  ground,  merely,  that 
the  injuiy  had  resulted  from  an  act  which 
is  a  public  offense  in  itself,  and  because 
other  persons  might  have  been  injured  and 
damaged  in  the  same  manner  and  to  the 
same  extent,  had  they  met  the  obstruction 
under  like  circumstances.  Such  is  not  the 
law.  The  general  doctrine  in  reference  to 
the  use  of  navigable  streams  as  public  high- 
ways is  that  each  person  has  an  equal  right 
to  their  reasonable  use.  What  constitutes  a 
reasonable  use  depends  upon  the  circum- 
stances of  each  particular  case,  and  no  posi- 
tive rule  can  be  laid  down  to  define  and 
regulate  such  use  with  precision,  so  various 
are  the  subjects  and  occasions  for  it,  and 
so  diversified  the  relations  of  the  parties 
therein  interested.  The  defendant  had  the 
right,  as  had  the  plaintiffs,  to  use  the  river 
as  a  highway  for  the  purposes  of  naviga- 
tion, and,  as  an  incident  to  this,  the  right 
to  secure  its  logs  in  side  booms,  although 
the  inevitable  result  would  be  to  tempo- 
rarily obstruct  the  logs  of  other  persons  des- 
tined for  a  mill  or  marlcet  further  down  the 
stream.  And  we  have  no  doubt  of  its  right, 
in  a  reasonable  manner,  to  erect  piers  and 
dams,  and  to  put  in  piling,  and  attach  boom 
sticks,  and  also  to  maintain  side  booms  for 
the  storage  of  logs;  but  it  was  not  author- 
ized by  the  construction  of  piers,  dams, 
booms,  or  boom  sticks,  or  by  tile  manage- 
ment of  either,  or  of  a  sorting  gap,  to  un- 
reasonably or  oppressively  obstruct  or  block- 
ade the  way.  It  must  use  the  stream  with 
due  deference  to  the  rights  of  others,  and 
in  most  respects  streams  used  for  high\\ay 
purposes  are  governed  by  the  same  general 
rules  of  law  as  are  highways  upon  land. 
No  general  rule  can  be  laid  down  for  deter- 
mining whether  a  pleading  shows,  or 
wh(>ther  the  evidence  produced  upon  a  trial 
tends  to  estabhsh,  a  case  under  the  principle 
or  nile  that,  to  maintain  an  action  for  a 
wrong  or  injury  arising  out  of  the  mainte- 
nance  of   a   public    nuisance,    an    individual 


must  have  sustained  special  injury  differing 
in  kind,  not  merely  in  degree  or  extent, 
from  that  sustained  by  the  general  public; 
and  we  shall  not  attempt  it.  It  is  well  dis- 
cussed in  Aldrich  v.  City  of  Minneapolis, 
supra.  We  are  of  the  opinion  that  the 
case  now  under  consideration  was  brought 
within  the  rule,  and  that  the  evidence  tend- 
ed to  show  that  plaintiffs  had  suffere<^l  a 
special  and  particular  injury.  This  injmy, 
the  direct  result  of  an  unreasonable  deten- 
tion of  their  logs  by  means  and  methods 
for  which  defendant  company  is  responsi- 
ble, was  wholly  distinct  and  different  in 
kind,  not  merely  in  degree  and  extent,  from 
that  sustained  by  the  general  public.  A 
private  action  can  be  maintained  to  redress 
this  injuiy,  notwithstanding  there  is  also  a 
remedy  affordetl  the  public.  In  priiiciple 
the  plaintiffs'  rights  cannot  be  distinguished 
from  the  individual  rights  considered  in 
Brakken  v.  Railway  Co.,  29  Minn.  41,  UN. 
W.  Rep.  124,  and  in  numerous  other  cases 
in  this  court,  where  an  action  to  redress 
a  private  wrong,  growing  out  of  a  public 
nuisance,  has  been  declared  the  proper  rem- 
edy. Attention  is  called  to  Brown  v.  Wat- 
son, 47  Me.  161,  and  Euos  v.  Hamilton,  27 
Wis.  2.j6,  in  which  the  exact  question  now 
before  us  has  been  discussed  briefly,  and 
passed  upon.  Both  cases  support  the  con- 
clusion herein  reached,  and  the  one  last 
cited  has  been  approved  in  at  least  Ihree 
later  cases  in  the  same  court.  That  it  has 
been  the  common  practice  to  bring  actions 
at  law  not  distinguishable  from  that  at  bar, 
and  also  in  equity,  and  to  prosecute  them  to 
a  successful  termination,  will  be  seen  from 
an  examination  of  the  following:  Powei-s  v. 
Irish,  23  :Mich.  429;  Watts  v.  Boom  Co., 
52  Mich.  203,  17  N.  W.  Rep.  809;  Gifford  v. 
McArthur,  55  Mich.  ."^3.5,  22  N.  W.  Rep.  28; 
Enos  V.  Hamilton,  24  Wis.  G5S;  Clark  v. 
I'eckham,  10  R.  I.  30;  Blanchard  v.  Tele- 
graph Co..  00  X.  Y.  510;  Hughes  v.  Heiser, 
1  Bin.  463;  Weise  v.  Smith,  3  Or.  445; 
Lancey  v.  Clifford,  54  Me.  487;  Dudley  v. 
Kennedy,  63  Me.  465;  McPheters  v.  Boom 
Co.,  78  Me.  329,  5  Atl.  Rep.  270;  Friok  v. 
Lawrence,  20  Conn.   117.    Order  reversed. 

VANDERBURGH,  J.,  absent,  took  no  p  irt 
herein. 

MITCHELL,  J.  I  concur  in  the  result, 
and  do  so  more  especially  on  the  ground 
that,  for  the  purposes  for  which  plaintiffs 
were  using  the  river,  (driving  logs.)  it  was 
their  only  highway  for  getting  their  timber 
to  their  mill. 

See  Butterfield  v.  Gilchrist,  53  Mich.  22,  IS 
N.  W.  542. 


70 


WATER. 


MINNEAPOLIS   MILL   CO.  v.   BOARD   OF 

WATER   COMRS  OF   CITY  OF   ST. 

PAUL. 

ST.    ANTHONY   FALLS    WATER-POWER 
CO.  V.  SAME. 

(.jS  N.  W.  33.) 

Supreme   Court   of   Minnesota.      Feb.   9.    1894. 

Appeals  from  district  court,  Hennepin  coun- 
ty; Thomas  Canty.  Judge. 

Action  by  the  Minneapolis  Mill  Company 
against  the  board  of  water  commissioners  of 
the  city  of  St.  Paul  for  an  injunction,  and 
an  action  by  the  St.  Anthony  Falls  Water- 
Power  Company  against  the  same  defendant 
for  the  same  relief.  The  two  actions  were 
tried  together,  and  both  dismissed.  From 
orders  denying  a  new  trial,  plaintiffs  appeal. 
Attirmed. 

Benton,  Roberts  &  Brown,  for  appellants. 
Leon  T.  Chamberlain  and  Walter  L.  Chapin, 
for  respondent, 

COLLINS,  J.     These  cases  were  tried  to- 
gether in  the  court  below,  and,  when  plain- 
tiffs   (appellants    here)    rested,    both    actions 
were    dismissed,    upon    defendant's    motion. 
From  orders  refusing  new  trial,  appeals  were 
taken.     Appellants  are  corporations  created 
in  1856  by  acts  of  the  territorial  legislature, 
and  authorized  to  build  and  maintain  dams 
in   the  Mississippi  river   at   the   falls   of   St. 
Anthony,  about  10  miles  above  St.  Paul,  for 
the  development  of  a  water  power,  and  for 
the  use  and   sale  of   such   power.     One   of 
these  corporations,  owning  the  shore  on  the 
east  side  of  the  river,  erected  a  dam  to  the 
proper  point  in  the  river   channel,   and   the 
other,  owning  the  east  shore,  built  its  dam 
so  as   to  connect  the   two,   thus    forming   a 
power  which  has  ever  since  been  maintained 
and  used.     In  1883  the  legislature  authorized 
the  city  of  St.  Paul  to  purchase,  and  there 
was  pm-chased,  the  property  and  franchises 
of  a  private  corporation  theretofore  engaged 
in  supplying  said  city  with  water.     A  board 
of  water  commissioners  was  created  by  the 
same  act,  and  that  board,  a  branch  of  the 
city   government,  is  the  present  respondent. 
By  the  provisions  of  an  amendatory  act  (Sp. 
L.aws  ISSo,  c.  110,  §  5  et  seq.)  the  board  was 
authorized   and   empowered    to   add    to    its 
sources  of  supply,  and  to  draw  water  from 
any  lake  or  creek,  and,  in  general,  to  do  any 
act   necessary    in   order   to    furnish    an   ade- 
quate supply  of  water  for  the  use  of  the  city. 
The  manner  in  which  it  should  acquire  the 
right  to  extend  its  worKS  so  as  to  connect 
with  any  body   of  water  deemed   necessary 
for  an  increased  supply,  was  specified,  and 
in  section  7  it  was  provided  that  "after  mak- 
ing compensation  as  hereinafter  provided  to 
the  owners  of  or  the  persons  interested  in 
the  lands  so  to  be  taken  and   for  damages 
by   reason   of   diverting    the    water  of     any 
stream,   creek,  or  body  of  water,   said   city 
shall  have  an  easement  therein."     In  section 
8,  provision  was  made  for  the  appointment 


of  commissioners  to  assess  the  damages  sus- 
tained by  the  owners  of  lands  to  be  taken, 
or  by  other  persons,  by  reason  of  such  tak- 
ing, or  arising  by  the  construction,  use,  and 
operation  of  the  works.  Under  this  act  the 
respondent  duly  established  a  pumping  sta- 
tion at  Lake  Baldwin,  a  body  of  water  with 
an  area  less  than  a  mile  square,  and  by 
means  of  its  pumps  forced  water  through 
conduits  to  the  city  for  public  use.  The  out- 
let of  this  lake  is  Rice  creek,  and  this  creek 
empties  into  the  Mississippi  river  a  few 
miles  above  the  dams  built  and  maintained 
by  appellants.  Claiming  that  the  result  of 
this  diversion  of  water  was  to  greatly  di- 
minish the  volume  which  came  to  the  dam, 
and  to  materially  affect  and  reduce  the  wa- 
ter power,  appellants  brought  these  actions 
to  restrain  and  enjoin  perpetually  the  opera- 
tion of  respondent's  works  at  the  lake,  and 
the  diversion  of  water  therefrom. 

Counsel  for  both  parties  made  lengthy  oral 
arguments,  and  have  filed  very  full  briefs. 
Many  qiiestions  have  been  discussed  which 
we  do  not  regard  as  connected  with  the  case, 
and  hence  we  need  not  refer  to  them.  There 
are  a  few  well-settled  principles  which  we 
regard  as  covering  and  controlling  the  facts 
before  us,  and  a  statement  of  these,  with  a 
construction  of  certain  parts  of  the  act  un- 
der which  respondent's  board  was  author- 
ized to  obtain  fiu-ther  and  other  sources  of 
water  supply,  will  dispose  of  these  appeals. 

1.  The  appellants  are  riparian  owners  on  a 
navigable  or  public  stream,  and  their  rights 
as  such  owners  are  subordinate  to  public  uses 
of  the  water  in  the  stream.  And  their  rights 
under  their  charters  are,  equallj'  with  their 
rights  as  riparian  owners,  subordinate  to 
these  public  uses. 

2.  There  can  be  no  doubt  but  that  the  pub- 
lic, through  their  representatives,  have  the 
right  to  apply  these  waters  to  such  public 
uses  without  providing  for  or  making  com- 
pensation to  riparian  owners. 

3.  The  navigation  of  the  stream  is  not  the 
only  public  use  to  which  these  public  waters 
may  be  thus  applied.  The  right  to  draw 
from  them  a  supply  of  water  for  the  ordi- 
nary use  of  cities  in  their  vicinity  is  such  a 
public  use,  and  has  always  been  so  recog- 
nized. At  the  present  time  it  is  one  of  the 
most  important  public  rights,  and  is  daily 
growing  in  importance  as  population  in- 
creases. The  fact  that  the  cities,  throtigh 
boards  of  commissioners  or  officers  whose 
functions  are  to  manage  this  branch  of  the 
municipal  government,  charge  consumers  for 
water  used  by  them,  as  a  means  for  paying 

I  the  cost  and  expenses  of  maintaining  and 
I  operating  the  plant,  or  that  such  consumers 
use  the  water  for  their  domestic  and  such 
other  purposes  as  water  is  ordinai-Uy  fiu-- 
uished  by  city  waterworks,  does  not  affect 
the  real  character  of  the  use,  or  deprive  it 
of  its  public  natiu-e. 

4.  In  thus  taking  water  from  navigable 
streams   or   lakes   for  such   ordinary   public 


WATER. 


71 


uses,  the  power  of  the  state  is  not  limited  or 
controlled  by  the  rules  which  obtain  between 
riparian  owners  as  to  the  diversion  from,  and 
its  return  to,  its  natural  channels.  Once  con- 
ceding that  the  taking  is  for  a  public  use, 
and  the  above  proposition  naturally  fol- 
lows. 

5.  Turning  now  to  the  provisions  of  re- 
spondent's charter,  (chapter  110,  supra,)  it 
will  be  seen  that  the  board  was  not  limited 
to  public  waters  as  the  soxu-ces  of  its  con- 
templated additional  supplies.  It  was  author- 
ized to  appropriate  private  waters  for  the 
piu-pose,  and  hence  the  provisions  of  the  act 
which  provided  for  the  ascertaining  of,  and 
making  compensation  for,  damages  caused 
by  a  diversion  of  water,  must  be  construed 
as  applying  solely  to  cases  where  the  board 
took  private  property  by  using  or  diverting 
merely  private  waters.  Inasmuch  as  the 
state  itself  could  use  the  waters  in  question, 
as  against  the  appellants,  without  compensa- 


tion, it  would  require  very  clear  language 
to  that  effect  to  justify  the  conclusion  that 
the  legislature  intended  to  impose  on  respond- 
ent board  the  burden  of  paying  appellants 
for  what,  as  against  the  public,  they  did  not 
own.  If  the  right  granted  by  the  legislature 
had  beei!  exclusively  to  divert  waters  from 
a  certain  specified  body  of  public  water,  such 
as  one  by  the  "great"  pond.s  of  Massachusetts, 
referred  to  in  the  cases  cited  from  the  Reports 
of  that  state,  so  that  the  provisions  in  chap- 
ter 110  relating  to  compensation  could  not 
apply  to  anything  else,— to  the  owners  of  pri- 
vate waters,  for  instance,— the  construction 
contended  for  by  appellants,  that  it  was  in- 
tended they  should  be  compensated  in  case 
damages  resulted,  might  arise  by  implica- 
tion.   Orders  affirmed. 

The  CHIEF  JUSTICE  did  not  sit.  VAN- 
DERBURGH, J.,  took  no  part  in  the  deci- 
sion. 


72 


WATER. 


GILLIS  V.   CHASE  et  al. 

(31  Atl    IS.) 

Supreme  Court  of  New  Hampshire.      Hills- 
boroujrh.      March  11,  1892. 

Case  reserved  from  Hillsborough  coimty. 

Five  actions  by  John  F.  Gillis,  administra- 
tor of  John  Gillis,  against  William  F.  Chase 
and  others,  for  diverting  water,  and  dimin- 
ishing the  flow  on  plaintiff's  land. 

Facts  found  by  the  court:  The  plaintiff  and 
one  J.  S.  Winn  are  riparian  owners.  Winn's 
land  is  above  the  plaintiff's  upon  the  stream. 
About  15  years  ago  Winn  built  a  dam  to  hold 
back  the  water,  and  formed  a  reservoir,  from 
which,  by  an  aqueduct,  he  supplied  water  to 
his  farm  buildings.  He  also  peniiitted  the 
defendants,  who  are  not  riparian  owners,  to 
connect  aqueducts  with  the  reservoir,  and 
thereby  supply  their  buildings  with  water, 
conveying  to  same  by  deed  a  right  to  such 
use.  The  defendants  all  claim  the  right  to 
take  the  water  from  the  reservoir  under  J. 
S.  Winn,  the  owner  of  the  land  where  the  res- 
ervoir is  located,  and  the  owner  of  a  part  of 
the  meadow  from  which  the  water  is  collect- 
ed. The  use  of  the  water  made  by  the  sever- 
al defendants  is  reasonable  as  to  the  quantity 
used.  Should  all  the  defendants  cease  using 
the  water,  the  amount  flowing  by  the  plain- 
tift"s  land  would  not  be  perceptibly  increased. 
Judgment  for  defendants. 

Henry  B.  Atherton,  for  plaintiff.  Chas.  H. 
Burns,  for  defendants. 

BLODGETT,  J.  The  case  finds  that  "the 
defendants  aU  claim  the  right  to  take  the  wa- 
ter from  the  reservoir  under  J.  S.  Winn,  the 
owner  of  the  land  where  the  reservoir  is  lo- 
cated, and  the  owner  of  a  part  of  the  meadow 
from  which  the  water  is  collected."  In  virtue 
of  the  ownership,  Winn's  right  to  divert  the 
water  for  use  to  a  reasonable  extent  was  in- 
cident to  the  land,  and,  as  the  plaintiff'  has 
tailed  to  show  any  actual  damage,  it  is  only 
for  an  uni-easouable  and  unauthorized  diver- 
sion that  the  law  will  imply  damage  to  him, 


because,  each  riparian  proprietor  having  the 
right  to  a  just  and  reasonable  use  of  the  wa- 
ter as  it  passes  through  and  along  his  land,  it 
is  only  when  he  transcends  his  right  by  an 
unreasonable  and  unauthorized  use  of  it  that 
an  action  will  lie  against  him  by  another  pro- 
prietor, whose  common  and  equal  right  to  the 
flow  and  enjoyment  of  the  water  is  thereby 
injuriously  affected.  And  as  the  reasonable- 
ness of  the  use  is,  to  a  considerable  extent,  a 
question  of  degree,  and  largely  dependent  on 
the  circumstances  of  each  case,  it  is  to  be 
judgetl  of  by  the  jury,  and  must  be  determined 
at  the  trial  term  as  a  mixed  question  of  law 
and  fact.  Jones  v.  Aqueduct  Co.,  (G  N.  H.  4'«iS, 
490;  Rindge  v.  Sargent,  64  N.  H.  294,  295,  9 
Atl.  723.  This  question  having  been  found 
adversely  to  the  plaintiff  by  the  trial  court, 
the  finding  is  conclusive  against  him  (Jones  v. 
Aqueduct  Co.,  supra),  and  consequently  the 
only  question  now  open  to  him  is  as  to  the 
right  of  Winn,  in  his  character  as  a  riparian 
proprietor,  to  sell  the  nonriparian  defendants 
any  of  the  water  belonging  to  him  as  incident 
to  his  land.  The  English  rule  is  understood 
to  be  that  "a  riparian  owner  cannot,  except 
as  against  himself,  confer  on  one  who  is  not  a 
riparian  owner  any  right  to  use  the  water  of 
the  stream;  and  any  used  by  a  nonriparian 
proprietor,  even  under  a  grant  from  a  ripa- 
rian owner,  is  unlawful."  Ormerod  v.  Mill 
Co.,  11  Q.  B.  Div.  155;  Swindon  Waterworks 
Co.  V.  Wilts  &  Berks  Canal  Nav.  Co.,  L.  R.  7 
H.  L.  (397;  Nuttall  v.  Bracewell,  L.  R.  2 
Exch.  1.  But  this  rule  is  othei*wise  in  this 
jurisdiction,  for  it  is  held  here  to  be  a  ques- 
tion of  fact  whether  the  use  of  the  water 
made  by  a  riparian  owner  for  his  own  pur- 
poses or  for  sale  to  others,  is,  under  all  the 
circumstances,  a  reasonable  use.  Jones  v. 
Aqueduct  and  Rindge  v.  Sargent,  supra.  And 
in  view  of  the  finding  that  the  sale  of  the  wa- 
ter to  the  defendants  by  Winn  is  a  reasonable 
use  of  his  right  as  a  riparian  owner,  the  plain- 
tiff has  no  standing  on  this  branch  of  the 
case.     Judgment  for  the  defendants. 


CLARK,  J.,  did  not  sit 
curred. 


The  others  con- 


WATER. 


DUMONT  T.  KELLOGG. 

(29  Mich.  420.) 

Supreme  Court  of  Michigau.    July  Term,  1874. 

Error  to   circuit  court,   Allegan  county. 

Norris,  Blair  &  Kiugsley,  for  plaintiff  in 
-error.  Williams  &  Humphrey  and  Hughes, 
O'Brien  &  Smiley,  for  defendaut  iu  error. 

COOLER.  J.  The  grievance  complained 
of  by  Kellogg  in  the  court  below  was  that 
Dumont  had  constructed  a  dam  across  a 
natural  water  course,  and  by  means  there- 
of wrongfully  detained  the  water  in  the 
stream  to  the  prejudice  and  injury  of  the 
plaintiff,  who  was  proprietor  of  a  mill- pre- 
viously erected  on  the  stream  below.  The 
reservoir  created  by  defendant's  dam  was 
quite  a  large  one,  and  plaintiff  gave  evi- 
dence that  the  flow  of  water  in  the  stream 
below  was  considerably  diminished  by  the 
increased  evaporation  and  percolation  re- 
sulting from  the  construction  of  this  dam. 
The  plaintiff  had  judgment  in  the  court  be- 
low, and  the  case  comes  here  upon  excep- 
tions, the  errors  principally  relied  upon  be- 
ing assigned  upon  the  in.structions  to  the 
jury,  and  involving  the  relative  rights  of 
riparian  proprietors  to  malie  use  of  the  wa- 
ters of  a  runuiug  stream  which  is  common 
to  both,  and  to  delay  its  flow  for  that  pur- 
pose. 

The  instructions  given  were  numerous, 
and  the  most  of  them  were  unexceptionable. 
Others  appear  to  be  based  upon  a  view  of 
tlie  law  which  is  not  to  be  reconciled  with 
the  authorities.     Of  these  are  the  following: 

"Every  proprietor  of  lands  on  the  banks 
of  a  stream,  and  every  mill  owner,  has  an 
equal  right  to  the  flow  of  the  water  in  the 
stream  as  it  was  wont  to  run,  witliout  dimi- 
nution or  alteration;  no  proprietor  luxs  the 
right  to  use  the  water  to  the  prejudice  of 
the  proprietors  below  him,  without  the  con- 
sent of  the  proprietors  below;  he  cannot 
divert  or  diminish  the  quantity  which  would 
otherwise  descend  to  the  proprietors  below. 

"He  must  so  use  the  water  as  not  mate- 
rially to  affect  the  application  of  the  water 
below   or   materially   diminish    its  quantity. 

"If  the  jury  find,  from  the  evidence,  that 
Dumont's  dam  and  pond  have  diminished, 
L>y  the  increased  evaporation  and  soaliage 
occasioned  by  it,  the  flow  of  the  water  in 
the  Dumont  creek  one-third,  or  any  other 
material  amount,  and  that  the  plaintiff  has 
sustained  damages  thereby,  then  the  plain- 
tiff is  entitled  to  recover  in  this  action. 

"The  rights  of  a  riparian  proprietor  are 
not  to  be  measured  by  the  reasonable  de- 
mands of  his  business.  His  right  extends 
to  the  use  of  only  so  much  of  the  stream  as 
will  not  materially  diminish  its  quantity, 
so  that  in  this  case  the  question  whether  de- 
fendant needs  the  water  as  he  uses  it  in  his 
business  is  eutirely  immaterial. 

"The  defendant  had  the  right  to  build  a 


dam  upon  his  laud,  but  he  must  so  con- 
struct the  dam  and  so  use  the  water  as  not 
to  injure  the  plaintiff  below  in  the  enjoy-^ 
ment  of  the  same  water,  according  to  its 
natural  course." 

In  endeavoring  to  determine  the  sound- 
ness of  these  instructions,  we  may  dismiss 
from  the  mind  the  fact  that  the  plaintiff 
had  first  put  the  waters  of  the  stream  to 
practical  use,  since  that  fact  gave  him  no 
superiority  in  right  over  the  defendant.  The 
settkni  doctrine  now  is  that  priority  of  ap- 
propriation gives  to  one  proprietor  no  supe- 
rior right  to  that  of  the  others,  unless  it  has 
been  continued  for  a  period  of  time,  and 
under  such  circimistances,  as  would  be  req- 
uisite to  establish  rights  by  prescription. 
Piatt  V.  Johnson,  15  Johns.  2i;i;  Tyler  v. 
Wilkinson,  4  Mason,  3!»7.  Fed.  Cas.  No.  14.- 
312;  Gilman  v.  Tilton,  5  X.  II.  2;il;  Pugh  v. 
Wheeler,  2  Dev.  &  B.  50;  Hartzall  v.  SUl, 
12  Pa.  St.  248;  Gould  v.  Duck  Co.,  13  Gray, 
442;  Wood  v.  Edes,  2  Allen,  57S;  Parker  v. 
Hotchkiss,  25  Conn.  321;  Heath  v.  Williams. 
25  :Me.  200;  Snow  v.  Parsons,  28  Vt.  403; 
Bliss  V.  Kennedy,  43  111.  07;  Cowles  v.  Kid- 
der, 24  N.  H  378.  It  is  not  claimed  that 
any  question  of  prescription  is  involved, 
and  the  case  is  conse(iuently  to  be  regarded 
as  only  presenting  for  adjudication  the  rela- 
tive rights  of  the  parties  at  the  common  law 
to  make  use  of  the  flowing  waters  of  the 
stream,  unaffected  by  any  exceptional  cir- 
cumstances. 

And  iu  considering  the  case  it  may  be  re- 
marked at  the  outset  that  it  differs  essen- 
tially from  a  case  iu  which  a  stream  has 
been  diverted  from  its  natural  course  and 
turned  away  from  a  proprietor  below.  No 
person  has  a  right  to  cause  such  a  diver- 
sion, and  it  is  wholly  a  wrongful  act,  for 
which  an  action  will  lie  without  proof  of 
special  danuige.  It  differs,  also,  from  the 
case  of  an  interference  by  a  stranger,  who. 
by  any  means,  or  for  anj'  cause,  diminishes 
the  flow  of  the  waters;  for  this  al.so  is 
wholly  wrongful,  and  no  question  of  the 
reasonableness  of  his  action  in  causing  the 
diminution  can  possibly  ari.se.  And  had 
the  instructions  which  are  excepted  to  been 
given  with  reference  to  a  case  of  diversion, 
or  of  obstruction  by  a  stranger,  the  broad 
terms  in  which  the  respctnsibility  of  the  de- 
fendant was  laid  down  to  the  jury  might 
have  found  abundant  jusliflcation  in  the  au- 
thorities. 

But  as  between  two  proprietors,  neither  of 
whom  has  acquired  superior  rights  to  the 
other,  it  cannot  be  said  tliat  one  "has  no 
right  to  use  the  water  to  the  prejudice  of 
the  proprietor  below  him."  or  that  he  can- 
not lawfully  "diminish  the  quantity  which 
would  descend  te  the  proprietor  below."  or 
that  "he  must  so  use  the  water  as  not  mate- 
rially to  affect  the  application  of  the  water 
below,  or  materially  to  diiniuish  its  quan- 
tity."    Such  a  rule  would  be  in  effect  this: 


74 


WATER. 


That  the  lower  proprietor  must  be  allowed 
the  eujoyiiieiit  of  his  full  common-law  rights 
as  such,  not  diminished,  restrained,  or  in 
any  manner  limited  or  qualified  by  the 
rights  of  the  upper  proprietor,  and  must  re- 
ceive the  water  in  its  natural  state  as  if 
no  proprietorship  above  him  existed.  Such 
a  rule  could  not  be  the  law  so  long  as  equal- 
ity of  right  between  the  several  proprietors 
was  recognized,  for  it  is  manifest  it  Avould 
give  to  the  lower  proprietor  superior  advan- 
tages over  the  upper,  and  in  many  cases 
give  him  in  effect  a  monopoly  of  the  stream. 
Cases  may  unquestionably  be  found  In 
which  the  rule  of  law  is  laid  down  as  broad- 
ly as  it  was  given  by  the'  circuit  judge  in 
this  case,  but  an  examination  of  them  will 
show  either  that  the  facts  were  essentially 
different,  or  that  the  general  language  was 
qualified  by  the  context.  Thus  the  lan- 
guage employed  in  the  first  instruction  as 
above  given  seems  to  have  been  quoted 
from  Lord  Tenterden,  in  Mason  v.  Hill,  3 
Barn.  &  .^dol.  312.  But  there  it  had  refer- 
ence to  a  case  of  diversion  of  water,  and 
was  strictly  accurate  and  appropriate.  The 
same  language  substantially  is  made  use  of 
in  Twiss  v.  Baldwin,  9  Conn.  20-1;  Wads- 
Avorth  v.  Tillotsou,  15  Conn.  373;  Arnold  v. 
Foot,  12  Wend.  331,— and  probably  in  many 
other  cases,  and  is  adopted  by  Chancellor 
Kent  in  his  Commentaries  (volume  3,  p. 
4o!>).  See,  also,  Bealey  v.  Shaw,  G  East, 
I'OS;  Agawam  Canal  Co.  v.  Edwards,  36 
Conn.  497;  Williams  v.  Morland,  2  Barn.  & 
C.  913;  Mason  v.  Hill,  5  Barn.  &  Adol.  1; 
Tillotson  V.  Smith,  32  N.  H.  95.  But  as  be- 
tween different  proprietors  on  the  same 
stream,  the  right  of  each  qualifies  that  of 
the  other,  and  the  question  always  is,  not 
merely  whether  the  lower  proprietor  suf- 
fers damage  by  the  use  of  the  water  above 
him,  nor  whether  the  quantity  flowing  on 
is  diminished  by  the  use,  but  whether  under 
all  the  circumstances  of  the  case  the  use  of 
the  water  by  one  is  reasonable  and  consist- 
ent with  a  correspondent  enjoyment  of  right 
by  the  other.  "Each  proprietor  is  entitled 
to  such  use  of  the  stream,  so  far  as  it  is 
reasonable,  conformable  to  the  usages  and 
wants  of  the  community,  and  having  regard 
to  the  progress  of  improvements  in  hydraul- 
ic works,  and  not  inconsistent  with  a  like 
reasonable  use  by  the  other  proprietors  of 
land  on  the  same  stream  above  and  below." 
Shaw,  C.  .T.,  in  Cary  v.  Daniels,  8  Mete. 
(Mass.)  477.  "The  common  use  of  the  wa- 
ter of  a  stream  by  persons  having  mills 
above  is  frequently,  if  not  generally,  at- 
tended with  damage  and  loss  to  the  mills 
below;  but  that  is  incident  to  that  com- 
mon use,  and  for  the  most  part  unavoidable. 
If  the  injury  is  trivial,  the  law  will  not  af- 
ford redress,  because  every  person  who 
builds  a  mill  does  it  subject  to  this  contin- 
gency. The  person  owning  an  upper  mill 
on  the  same  stream  has  a  lawful  right  to 


use  the  water,  and  may  apply  it  in  order 
to  work  his  mills  to  the  best  advantage, 
subject,  however,  to  this  limitation:  that  if 
in  the  exei'cise  of  this  right,  and  in  conse-  j 
quence  of  it,  the  mills  lower  down  the  | 
stream  are  rendered  useless  and  unproduct- 
ive, the  law  in  that  case  will  interpose  and 
limit  this  common  right  so  that  the  owners 
of  the  lower  mills  shall  enjoy  a  fair  partici- 
pation." Woodworth,  J.,  in  Meritt  v.  Brink- 
erhoff,  17  Johns.  321.  It  is  a  fair  partici- 
pation and  a  reasonable  use  by  each  that 
the  law  seeks  to  protect.  Such  interruption 
in  the  flow  "as  is  necessary  and  unavoida- 
ble by  the  reasonable  and  proper  use  of  the 
mill  privilege  above"  cannot  be  the  subject 
of  an  action.  Chandler  v.  Howland,  7  Gray, 
350.  And  see  Embrey  v.  Owen,  6  Exch. 
353;  Hetrich  v.  Deachler,  6  Pa.  St.  32;  Hart- 
zall  V.  Sill,  12  Pa.  St.  248;  Pitts  v.  Lancas- 
ter Mills,  13  Mete.  (Mass.)  15G;  Bliss  v.  Ken- 
nedy, 42  111.  G8.  As  was  said  by  Mr.  Jus-  J 
tice  Story  in  Tyler  v.  Wilkinson,  4  Mason,  ^ 
401,  Fed.  Cas.  No.  14,312,  to  hold  that  there 
can  be  no  diminution  whatever,  no  obstruc- 
tion or  impediment  whatsoever,  by  a  riparian 
proprietor  in  the  use  of  water  as  it  flows, 
would  be  to  deny  any  valuable  use  of  it. 
There  may  be  and  there  must  be  allowed  of 
that  which  is  common  to  all  a  reasonable 
use  by  each.  And,  if  further  authorities 
are  important,  Palmer  v.  Mulligan,  3  Caines, 
308;  Billing  v.  Murray.  6  Ind.  324;  Snow  v. 
Parsons,  28  Vt.  459;  Hayes  v.  Waldrou,  44 
N.  H.  580;  'Davis  v.  Getchell,  50  Me.  G02; 
and  Clinton  v.  Myers,  46  N.  Y.  514,— may  be 
referred  to.  It  is  thei-efore  not  a  diminu- 
tion in  the  quantity  of  the  water  alone,  or 
an  alteration  in  its  flow,  or  either  or  both 
of  these  circumstances  combined  with  in- 
jury, that  will  give  a  right  of  action,  if  in 
view  of  all  the  circumstances,  and  having 
regard  to  equality  of  right  in  others,  that 
which  has  been  done  and  which  causes  the 
injury  is  not  reasonable.  In  other  words, 
the  injm-y  that  is  incidental  to  a  reasonable 
enjoyment  of  the  common  right  can  demand 
no  redress. 

We  think  the  court  erred  also  in  declining 
to  instruct  the  jury  on  defendant's  request 
that  in  determining  the  question  of  reason- 
able use  by  the  defendant  they  might  con- 
sider, among  other  things,  the  general  usage 
of  the  country'  in  similar  cases.  As  was 
said  in  Gould  v.  Duck  Co.,  13  Gray,  452: 
"Usage  is  some  proof  of  what  is  considered 
a  reasonable  and  proper  use  of  that  which 
is  a  common  right,  because  it  affords  evi- 
dence of  the  tacit  consent  of  all  parties  in- 
terested to  the  general  convenience  of  such 
use."  And  see  Thurber  v.  Martin,  2  Gray. 
394;  Snow  v.  Parsons,  28  Vt.  4.59.  Indeed 
in  most  cases  this  proof  is  the  most  .satis- 
factory and  conclusive  that  could  be  adduc- 
ed, being  established  by  the  parties  con- 
cerned, who  understand  better  than  any 
others   what  is  reasonable  and  convenient. 


WATER. 


and  who  would  not  be  likely  to  acquiesce  in 
any  thing  which  was  not  so. 

These  errors  render  it  necessary  to  order 
a  new  trial.  Some  of  the  rulings  on  the  ad- 
mission of  evidence  seem  to  have  been  very 


liberal,  but  we  are  not  satisfied  that  they 
exceeded  the  bounds  of  judicial  discretion. 

The  judgment  will  be  reversed,  with  costs, 
and  a  new  trial  ordered. 

The  other  justices  concurred. 


76 


WATER. 


POTTER  T.   INDIANA  &   L.   M.   RY.  CO. 

(54  N.  W.  95<3.  95  Mich.  389.) 

Supreme  Court  of  Michigan.    April   21,    1S03. 

Error  to  circuit  court,  Berrien  county; 
Thomas  O'Hara.  Ju(l.ce. 

Action  by  Calviu  B.  Potter  ajrainst  the 
Indiana  &  Lake  Michigan  RnUway  Com- 
pany to  recorer.  daiiiases  for  ob.structing  an 
allfged  navigable  stream.  From  a  partial 
judgment  for  plaintiff,  both  parties  appeaL 
Reversed. 

C.  B.  Potter,  Jr.,  and  George  S.  Clapp.  for 
plaintiff.  David  Strouse  and  Edward  Bacon, 
for  defendant. 

GRANT,  J.  Plaintiff  is  the  owner  of  an 
undivide<l  half  interest  La  five  universitj-  lots, 
numbered  14,  16,  17,  24.  and  25,  located  in  a 
marsh  on  the  left  bank  of  the  St.  Joseph 
river,  near  its  mouth.  Each  lot  contains 
five  acres.  The  lots  were  situated  on  section 
24,  township  4  S..  range  19  W.,  and,  with  25 
similar  lots,  comprised  the  S.  W.^  14  of  said 
section.  This  laud  was  granted  by  the 
United  States  to  the  state  of  Michigan  for 
university  purposes,  and  in  1S42  was  divided 
and  platte<l  into  lots  for  sale.  Plaintiff  be- 
came the  purchaser  in  ISSl.  The  defend- 
ant's road  was  constructed  in  IJsSS.  In  Oc- 
tober, ISOO.  the  defendant  and  the  tov^Tiship 
of  St.  Joseph  made  a  contract  for  the  con- 
struction of  a  viaduct,  which  is  the  subject 
of  this  controversy,  and  which  was  con- 
structed according  to  the  contract,  and  ac- 


cepted by  the  municipality.  The  village  of 
St.  Joseph  is  situated  on  the  high  ground 
on  the  left  bank  of  the  river,  directly  op- 
posite the  -viaduct.  The  village  of  Benton 
Harbor  is  situated  on  the  high  ground  on 
the  right  bank  of  the  river.  Tliese  two  vil- 
lages, in  1890.  had  a  population  of  over 
7.000.  Across  the  river  is  a  bridge  with  a 
swing.  The  viaduct  and  the  bridge  across 
the  river  are  a  part  of  the  only  public  high- 
way between  the  two  villages.  The  viaduct 
is  required  by  public  convenience  and  neces- 
sity. It  is  over  a  bayou  which  was  orig- 
inally connected  ^^-ith  the  river  upon  the 
north,  and  is  now  extended  to  the  river  upon 
the  south.  The  old  bayou  was  crooked,  and 
extended  across  plaintiff's  lots  14  and  Ifi. 
In  ISSl  a  canal  was  dredged,  by  private 
subscription,  to  the  westward  of  the  old 
bayou,  from  a  point  on  lot  2  northward  to  the 
river.  The  old  bayou  is  connected  with  this 
canal  near  the  northerly  side  of  lot  2.  The 
situation  will  appear  upon  the  accompanying 
plat. 

The  viaduct  is  situated  upon  lot  1,  loo 
rods  distant  from  plaintiff's  nearest  lot.  The 
clear  space  between  the  water  and  the  via- 
duct is  24^2  feet,  and  its  width  40  feet.  In 
1S42  a  bridge  was  constructed  across  the 
Bt.  Joseph  river  for  a  territorial  road,  and 
one  across  this  same  bayou  for  the  same 
road,  on  lot  1.  This  bridge  was  lower  than 
Hie  present  viaduct,  had  no  draw  or  swing, 
and  existed  for  more  than  30  3'ears.  In  the 
original  surveys  by  the  United  States  gov- 
ernment, this  bayou  was  immeandered.  In 
18.S1,  when  the  canal  was  dug,  the  old  bridge 
was  removed,  and  a  swing  put  in  its  place, 
about  eight  feet  above  the  water.  At  this 
time  the  old  bayou,  to  whatever  extent  it 
may  have  been  used  prior  to  that  for  nav- 
igation, was  evidently  abandoned.  In  Sep- 
te)Mber,  1S91,  by  actual  measurement,  tlie 
depth  of  the  water  in  this  old  bayou,  where 
it  empties  into  the  canal,  was  2  feet;  at 
the  comer  of  lots  9.  10,  11,  and  12,  it  was 
4y2  feet;  at  the  comer  of  9,  8,  13,  and  12,  it 
was  3  feet;  at  the  comer  of  7,  8,  13,  and  14, 
it  w;is  2Y2  feet;  at  the  corner  of  14,  15,  16, 
and  17,  it  was  2  feet;  and  across  lot  16,  it 
was  IS  inches.  The  old  bayou,  originally,  did 
not  extend  to  the  river  upon  the  .south,  but 
was  plowed  and  scraped  out  by  the  highway 
commissioners  to  afford  an  escape  for  the 
surplus  water  from  the  river,  which,  with 
the  ice,  was  dangerous  to  the  bridge  below. 
The  river  itself  is  a  navigable  stream,  and 
was  once  quite  extensively  used,  but  is  now 
practically  abandoned  for  that  purpose.  A 
mile  above  the  viaduct  is  another  bridge 
across  the  river,  which  has  existed  for  many 
years,  has  no  swing,  and  is  considerably 
lower  than  the  viaduct  No  wharves,  man- 
ufactories, or  buildings  of  any  kind  have 
ever  been  const  nicted  on  any  of  these  low 
lands  above  the  viaduct,  except  a  miU, 
which  was  erected  on  the  west  side  of  the 
canal,  but  was  a  failure,  and  was  long  ago 
abandoned.    There  has  been  no  navigation, 


WATER. 


77 


of  any  consequence,  for  many  years,  in  the 
canal  above  the  viaduct.  Tlie  swing  bridge 
had  become  somewhat  impaired,  and  three 
montlis  before  tlie  contract  for  the  constmc- 
tion  of  the  viaduct  tlie  public  authorities 
caused  it  to  be  permancnitly  fastened  so  as 
to  prevent  any  attempt  to  swing  it.  The 
only  use  made  of  lh(»  bayou  or  canal  above 
the  viaduct,  according  to  the  plaiirtiff's  own 
testimony,  is  that,  while  this  factory  Avas 
running,  material  was  taken  to  it  on  scows 
or  lighters.  He  had  also  seen  one  small  river 
steamer  go  through.  He  tliought  this 
steamer  went  thi-ough  the  channel  while  the 
river  bridge  was  being  built,  and,  according 
to  his  recollection,  he  had  seen  sailing  ves- 
sels in  the  bayou,  south  of  the  viaduct. 
Plaintiff,  in  his  declaration,  alleges  that  this 
bayou  is  a  navigable  stream;  that  the  via- 
duct obstnicts  its  use,  and  has  thereby  de- 
preciated the  value  of  his  lots.  He  recover- 
ed a  verdict  of  $300. 

1.  Plaintiff  cannot  maintain  this  action 
unless  he  has  shown  that  he  has  sustained 
some  special  or  peculiar  damage,  separate 
and  distinct  from  that  sustained  by  the  pub- 
lic at  large.  Gould,  Waters.  §§  122,  128,  and 
authorities  there  cited;  Blackwell  v.  Rail- 
road Co.,  122  Mass.  1;  O'Brien  v.  Ilailroad 
Co.,  17  Conn.  373.  There  is  no  testimony 
to  .sustaiu  the  claim  that  the  old  bayou  is 
a  navigable  stream.  Even  if  the  canal  were 
navigable,  none  of  the  plaintiff's  lands  ad- 
join it.  He  therefore  has  no  interest  ex- 
cept that  possessed  by  the  public  in  common, 
viz.  the  right  to  the  use  of  the  stream  as  a 
public    highway.    If   he    may    maintain    the 


action,  so  may  any  other  landowner  living 
above  the  viaduct.  Under  those  circum- 
stances, the  only  course  open  to  him  was 
to  apply  to  the  proper  public  authorities  to 
take  procofdings  to  abate  the  stnjcture  as 
a  public  nuisance. 

2.  Plaintiff  has  shown  no  special  damag-*;?, 
even  if  the  old  bayou  which  reaches  his  land 
were  a  navigable  stream.  He  alleges  in  liis 
declaration  that  his  lands  were  suitable  for 
dockage,  wareliousing,  manufacturing,  lum- 
ber and  coal  yards,  and  such  other  purp(PSi's 
as  are  common  in  connection  with  shipping 
and  freighting  business.  It  is  evident  that 
they  are  useful  for  no  other  purpose. 
Whether  there  will  ever  be  a  demand  for 
tliem  for  sucli  pmposes  is  problematical. 
His  damages,  therefore,  are  purely  specu- 
lative. 

3.  The  canal  was  purely  a  private  enter- 
prise, and  the  public  never  obtained  any 
riglits,  by  prescription  or  otherwi^^e,  in  ir. 
It  was  constructed  mainly  on  account  of  the 
erection  of  the  mill  on  lot  G.  There  was 
but  little,  if  any.  occasion  for  its  use  after 
that  enterprise  failed.  Whatever  u.se  was 
made  of  it  did  not  constitute  it  a  public  liigli- 
way.  It  was  like  a  private  road  constnict- 
ed  and  maintaini-d  at  private  expense,  over 
whicli  the  public  is  permitted  to  travel,  but 
in  which  it  obtains  no  vested  rights.  .Tudj.- 
ment  is  reversed,  and  judgment  enti'red  in 
this  court  for  the  defendant,  with  costs  of 
l)()th  courts. 


MONTGOMERY,  J.,  did  not  sit. 
justices  concurred. 


The  other 


78 


LOST  PROPERTY. 


McAYOY   V.    MEDINA. 

(11  Allen,  548.) 

Supreme  Judicial  Court  of  Massachusetts. 
Essex.    Jan.  Term,  1866. 

At  the  trial  in  the  superior  court,  before 
Morton,  J.,  it  appeared  that  the  defendant 
was  a  barber,  and  the  plaintiff,  being  a  cus- 
tomer in  the  defendant's  shop,  saw  and  took 
up  a  pocket-book  which  was  lying  upon  a 
table  there,  and  said,  "See  what  I  have  found." 
The  defendant  came  to  the  table  and  asked 
where  he  found  it.  The  plaintiff  laid  it  back 
in  the  same  place,  and  said,  "I  found  it  right 
there."  The  defendant  then  took  it  and  count- 
ed the  money,  and  the  plaintiff  told  him  to 
keep  it,  and  if  the  owner  should  come  to  give 
it  to  him,  and  otherwise  to  advertise  it.  which 
the  defendant  promised  to  do.  Subsequently 
the  plaintiff  made  three  demands  for  the  mon- 
ey, and  the  defendant  never  claimed  to  hold 
the  same  till  the  last  demand.  It  was  agreed 
that  the  pocket-book  was  placed  upon  the 
table  by  a  transient  customer  of  the  defend- 
ant, and  accidentally  left  there,  and  was  first 
seen  and  taken  up  by  the  plaintiff,  and  that 
the  owner  had  not  been  found. 

The  judge  ruled  that  the  plaintiff  could  not 
maintain  his  action,  and  a  verdict  was  ac- 
cordingly returned  for  the  defendant,  and  the 
plaintiff  alleged  exceptions. 

E.  J.  Sherman  &  J.  C.  Sanborn,  for  plaintiff. 
D.  Saimders,  Jr.,  for  defendant. 

DEWEY.  J.  It  seems  to  be  the  settled  law 
that  the  finder  of  lost  property  has  a  valid 
claim  to  the  same  against  all  the  world  except 
the  true  owner,  and  generally  that  the  place 
in  which  it  is  found  creates  no  exception  to 
this  rule.  2  Pars.  Cont.  97:  Bridges  v. 
Hawkesworth.  7  Eng.  Law  &  Eq.  424. 


But  this  property  is  not,  under  the  circum- 
stances, to  be  treated  as  lost  property  in  that 
sense  in  which  a  finder  has  a  valid  claim  to 
hold  the  same  until  called  for  by  the  true 
owner.  This  proi>erty  was  voluntarily  placed 
upon  the  table  in  the  defendant's  shop  by  a 
customer  of  his  who  accidentally  left  the  same 
there  and  has  never  called  for  it.  The  plain- 
tiff also  came  there  as  a  customer,  and  first 
saw  the  same  and  took  it  up  from  the  table. 
The  plaintiff  did  not  by  this  acquire  the  right 
to  take  the  property  from  the  shop,  but  it 
was  rather  the  duty  of  the  defendant,  when 
the  fact  became  thus  known  to  him,  to  use 
reasonable  care  for  the  safe-keeping  of  the 
same  until  the  owner  should  call  for  it.  In 
the  case  of  Bridges  v.  Hawkesworth  the 
property,  although  foimd  in  a  shop,  was  found 
on  the  floor  of  the  same,  and  had  not  been 
lilaced  there  voluntarily  by  the  owner;  and 
the  court  held  that  the  finder  was  entitled  to 
the  possession  of  the  same,  except  as  to  the 
owner.  But  the  present  ease  more  resembles 
that  of  Lawrence  v  State,  1  Humph.  228.  and 
is  indeed  very  similar  in  its  facts.  The  court 
there  take  a  distinction  between  the  case  of 
property  thus  placed  by  the  owner  and  ne- 
glected to  be  removed,  and  property  lost.  It 
was  there  held  that  "to  place  a  pocket-book 
upon  a  table  and  to  forget  to  take  it  away  is 
not  to  lose  it.  in  the  sense  in  which  the  au- 
thorities referred  to  speak  of  lost  property." 

We  accept  this  as  the  better  rule,  and  es- 
pecially as  one  better  adapted  to  secure  the 
rights  of  the  true  owner. 

In  view  of  the  facts  of  this  case,  the  plain- 
tiff acquired  no  original  right  to  the  property, 
and  the  defendant's  subsequent  acts  in  re- 
ceiving and  holding  the  property  in  the  man- 
ner he  did  does  not  create  any.  Exceptions 
overruled. 


LOST  PROPERTY 


79 


HAMAKER  v.   BLANCHARD. 

(90  Pa.   St.  377.) 

Supreme  Court  of  Pennsylvania.     May  27 
1879. 

Assumpsit  to  recover  money  found  l)y  a 
servant  in  a  hotel  parlor,  and  delivered  by 
her  to  the  proprietor  to  be  returned  to  the 
owner,  but  v\'ho  vs^as  never  found. 

H.  J.  Culbertson,  for  plaintiff  in  error.  J. 
A.  McKee,  for  defendants  in  error. 

TRUNKEY,  J.  It  seems  to  be  settled  law 
that  the  finder  of  lost  property  has  a  valid 
-claim  to  the  same  against  all  the  world  ex- 
cept the  true  owner,  and  generally  that  the 
place  in  which  it  is  found  creates  no  excep- 
tion to  this  rule.  But  property  is  not  lost 
in  the  sense  of  the  rule,  if  it  was  intention- 
ally laid  on  a  table,  counter,  or  other  place, 
by  the  owner,  who  forgot  to  take  it  away, 
and  in  such  case  the  proprietor  of  the  prem- 
ises is  entitled  to  retain  the  custody.  When- 
ever the  surroundings  evidence  that  the  ar- 
ticle was  deposited  in  its  place,  the  finder 
has  no  right  of  possession  against  the  owner 
of  the  building.  McAvoy  v.  Medina,  11  Allen 
(Mass.)  u4S.  An  article  casually  dropped  is 
within  the  rule.  Where  one  went  into  a  shop, 
and,  as  he  was  leaving,  picked  up  a  parcel 
of  banknotes,  which  was  lying  on  the  floor, 
and  immediately  showed  thorn  to  the  shop- 
man, it  was  held  that  the  facts  did  not  war- 
rant the  supposition  that  the  notes  had  been 
deposited  there  intentionally,  they  being  mani- 
festly lost  by  some  one,  and  there  was  no 
circumstance  in  the  case  to  take  it  out  of  the 
general  rule  of  law  that  the  finder  of  a  lost 
article  is  entitled  to  it  as  against  all  persons 
except  the  real  owner.  Bridges  v.  Hawkes- 
worth.  7  Eng.  Law  &  Eq.  424. 

The  decision  in  Mathews  v.  Harsell,  1  E. 
D.  Smith.  393,  is  not  in  confiict  with  the 
principle,  nor  is  it  an  exception.  Mrs.  Math- 
ews, a  domestic  in  the  house  of  Mrs.  Bar- 
more,  found  some  Texas  notes,  which  she 
handed  to  her  mistress,  to  keep  for  her.  Mrs. 
Barmore  aftei-wards  entrusted  the  notes  to 
Plarsell,  for  the  purpose  of  ascertaining  their 
value,  informing  him  that  she  was  acting  for 
her  servant,  for  whom  she  held  the  notes. 
Harsell  sold  them,  and  appropriated  the  pro- 
ceeds; whereupon  Mrs.  Mathews  sued  him 
and  recovered  their  value,  with  interest  from 
date  of  sale.  Such  is  that  case.  True, 
Woodruff,  J.,  says:  "I  am  by  no  means  pre- 
pared to  hold  that  a  house  servant  who  finds 
lost  jewels,  money,  or  chattels  in  the  house 
of  his  or  her  employer  acquires  any  title  even 
to  retain  possession  against  the  will  of  the 
employer.    It   will  tend   much   more  to  pro- 


mote honesty  and  justice  to  require  servants 
in  such  cases  to  deliver  the  property  so 
found  to  the  employer,  for  the  benefit  of  the 
true  owner."  To  that  remark,  foreign  to  the 
case  as  understood  by  himself,  he  added  the 
antidote:  "And  yet  the  court  of  Queen's 
bench  in  England  have  recently  decided  that 
the  place  in  which  a  lost  article  is  found 
does  not  form  the  ground  of  any  exception  to 
the  general  rule  of  law  that  the  finder  is  en- 
titled to  it  against  all  persons  except  the  own- 
er." His  views  of  what  will  promote  hon- 
esty and  justice  are  entitled  to  respi^ct,  yet 
many  may  think  that  Mrs.  Barmore's  method 
of  treating  servants  is  far  superior. 

The  assignments  of  error  are  to  so  much  of 
the  charge  as  instructed  the  jury  that,  if 
they  found  the  money  in  question  was  lost, 
the  defendant  had  no  right  to  retain  it  be- 
cause found  in  his  hotel,  the  circumstances 
raising  no  presumption  that  it  was  lost  by  a 
guest,  and  their  verdict  ought  to  be  for  the 
plaintiff.  That  the  money  was  not  voluntar- 
ily placed  where  it  was  found,  but  accidental- 
ly lost,  is  settled  by  the  verdict. 

It  is  adnntted  that  it  was  found  in  the  par- 
lor, a  public  place  open  to  all.  There  is  noth- 
ing to  indicate  whether  it  was  lost  by  a  guest, 
or  a  boarder,  or  one  who  had  called  with  or 
without  business.  The  pretense  that  it  was 
the  property  of  a  guest,  to  whom  the  defend- 
ant would  be  liable,  is  not  founded  on  an 
act  or  circumstance  in  evidence. 

Manj'  authorities  were  cited  in  argument, 
touching  the  rights,  duties,  and  responsibil- 
ities of  an  innkeeper  in  relation  to  his  guests. 
These  are  so  well  settled  as  to  be  uncontro- 
verted.  In  respect  to  other  persons  than 
guests,  an  innkeeper  is  as  another  man. 
When  money  is  found  in  his  house,  on  the 
rtoor  of  a  room  common  to  all  classes  of  per- 
sons, no  presumption  of  ownership  arises; 
the  case  is  like  the  finding  upon  the  floor  of 
a  shop.  The  research  of  counsel  failed  to  dis- 
cover authority  that  an  innkeeper  sliall  have 
an  article  which  another  finds  in  a  public 
room  of  his  hou.se,  where  there  is  no  circum- 
stance pointing  to  its  loss  by  a  guest.  In 
such  case  the  general  rule  should  prevail.  If 
the  finder  be  an  honest  woman  who  immedi- 
ately informs  her  employer,  and  gives  him 
the  article  on  his  false  pretense  that  he 
knows  the  owner  and  will  restore  it,  she  is 
entitled  to  have  it  back  and  hold  it  until  the 
owner  comes.  A  rule  of  law  ought  to  apply 
to  all  alike.  Persons  employed  in  inns  will 
be  encouraged  to  fidelity  by  protecting  them 
in  eciuality  of  rights  with  others. 

The  U>arned  judge  was  right  in  his  instiTJC- 
tions  to  the  jur>-.    Judgment  affirmed. 

See  Bowon  v.  Sullivan,  62  Ind.  281. 


so 


LOST  PROPERTY. 


WATTS  et  al.  v.  WARD. 
(1  Or.  86.) 
Supreme  Court  of  Oregon.  June,  1854. 
The  parties  emigrated  to  Oregon  in  1852. 
AVartl  lost  two  horses  in  the  Indian  country, 
and  plaintiff  in  error  found  and  recognised 
them  as  belonging  to  plaintiff.  They  took 
the  horses  to  bring  and  deliver,  as  they  said, 
to  Ward,  when  he  should  pay  them  for  their 
trouble,  but  used  them  on  the  road  for  driving 
cattle,  hunting  buffalo,  etc.  They  also  per- 
mitted another  emigrant  to  use  one  of  the 
horses  two  months.  One  of  the  horses  died 
on  the  journey,  and  the  other  in  the  following 
winter. .  The  testimony  differed  as  to  wheth- 
er the  horses  died  from  hard  usage  or  sick- 
ness, but  both  died  in  possession  of  plaintiffs 
in  error.  The  court  insti-ucted  the  jury,  in 
substance,  that  the  defendants  had  a  right  to 
take  up  the  hoi"ses.  and  use  them  as  much  as 
was  necessary  and  proper  to  bring  them  to 
plaintiff,  but  had  no  right  to  use  them  for 
their  own  benefit,  or  for  purposes  other  than 
the  bringing  of  them  to  the  owner.  Verdict 
and  judgment  for  Ward  for  $160. 

M.  Chinn.  for  plaintiffs  in  error.  Jas.  Mc- 
Cabe,  for  defendant  in  error. 

WILLIAMS,  C.  J.  The  instruction  of  the 
court,  it  is  said,  was  erroneous.  No  doctrine 
is  better  settled  at  common  law  than  that  the 
finder  of  lost  property  is  not  entitled  to  a  re- 
ward for  finding  it,  if  there  be  no  promise  of 
such  reward  by  the  owner.  Brinstead  v. 
Buck,  2  Bl.  R.  illT;  Nicholson  v.  Chapman, 
2  H.  Bl.  R.  2.>4;  2  Kent.  Comm.  350;  5 
Mete.  352.  Some  of  the  authorities  maintain 
that  the  finder  ot  lost  property  is  entitled  to 
recover  from  the  owner  thereof  his  necessary 
and  reasonable  expenses  in  the  finding  and 
restoration  of  said  property.  Amory  v.  Flinn, 
10  Johns.  102;  2  Kent,  Comm.  35G.  Other 
authorities  seem  to  take  the  ground  that  the 
finder  has  no  legal  right  to  anything  from 
the  owner  for  his  trouble  and  expense  in  find- 
ing lost  property.  Brinstead  v.  Buck.  Nich- 
olson V.  Chapman,  before  cited,  appear  to 
stand  upon  this  principle.  Chief  Justice  Eyre, 
speaking  upon  this  subject  in  the  latter  case. 
says:  "Perhaps  it  is  better  for  the  public 
that  these  voluntary  acts  of  benevolence  from 
one  man  to  another,  which  are  charities  and 
moral  duties,  but  not  legal  duties,  should 
depend  altogether  for  their  reward  upon  the 
moral  duty  of  gratitude."  Chief  Justice 
Shaw,  in  Wentworth  v.  Day.  3  Mete.  (Mass.) 
352.  says  that  "the  finder  of  lost  property  on 
land  has  no  ri^ht  of  salvage  at  common  law." 
Where  one  pei*son  gratuitously  performs  an 
act  of  kindness  for  another,   the  law,   as  a 


general  rule,  does  not  recognise  the  right  to  a 
compensation  for  such  act.  In  the  case  of 
Holmes  v.  Tremper.  20  Johns.  R.  28,  it  was 
held  that  the  plaintiff  was  not  entitled  to 
any  recompense  for  services  rendered  in  sav- 
ing defendant's  property  from  fire,  because 
such  services  were  entirely  voluntary,  and 
without  any  exi>ense  or  implied  promise  on 
the  part  of  defendant  to  pay  for  them.  No 
person  is  bound  in  law  to  take  trouble  with 
property  which  he  finds;  and  if,  without  any 
knowledge  of  th-^  owner's  wishes,  he  does  in- 
cur expense  on  account  of  such  property,  does 
he  not  in  so  doing  trust  the  liberality  of  the 
owner,  rather  than  the  force  of  law,  for  it 
may  be  that  such  owner  did  not  desire  to  have 
his  property  disturbed,  or,  if  lost,  preferred  to 
find  it  himself?  Much  of  the  stock  in  this 
country  is  permitted  to  run  at  large;  and  if 
every  animal  lost,  or  appearing  to  be  lost,  can 
be  taken  up.  and  the  owner  thereof  legally 
charged  for  all  trouble  and  expense  therebj 
incurred,  the  business  of  finding  cattle  would 
certainly  become  profitable,  and  persons  might 
be  largely  involved  in  debt  without  their 
knowledge  or  consent.  Where  a  reward  is  of- 
fered for  lost  property,  the  finder,  when  he 
complies  with  the  terms  of  the  offer,  has  a 
right  to  retain  the  property  in  his  hands  until 
the  promised  reward  is  paid  to  him.  Went- 
worth V.  Day.  3  Mete.  (Mass.)  352.  Persons 
are  apt  to  offer  a  reward  if  they  wish  to  pay 
for  the  finding  of  lost  property.  All  the  au- 
thorities make  a  difference  between  the  find- 
ing of  property  lost  at  sea  and  the  finding  of 
property  lost  on  land.  Commercial  policy  al- 
lows salvage  in  the  one  case,  because  there 
is  peril  in  the  finding,  and  immediate  de- 
struction threatens  the  property;  in  the  otlier 
case  there  is  no  peril,  and  generally  no  dan- 
ger that  the  property  will  be  destroyed.  But. 
if  it  be  admitted  that  the  owner  of  lost  prop- 
erty is  bound  to  remunerate  the  finder  for  his 
trouble  and  expen.se  in  tlie  finding,  it  is  cer- 
tain that  such  finder  cannot  pay  himself  as  he 
goes  along  by  using  the  property  for  that 
pitrpose.  He  cannot  be  permitted  to  judge  as 
to  how  much  his  demand  for  trouble  and  ex- 
pense shall  be.  and  then  as  to  how  much  he 
ought  to  use  the  property  to  satisfy  such  de- 
mand. The  owner  has  rights  in  these  mat- 
tei's,  and  must  be  consulted. 

Let  the  property,  when  found,  be  returned 
to  the  owner,  and  then  the  amount  and  mode 
of  compensation,  if  any,  can  be  determined. 
Plaintiffs  in  this  case  having  treated  and 
used  the  horses  as  their  own.  for  their  own 
l)enefit  and  gain,  defendant  had  a  right  to 
charge  them  with  a  conversion  of  the  prop- 
erty, and  maintain  his  suit  for  its  value. 
Judgment  aflSrmed. 


LOST  PROPERTY. 


81 


CHASE  V.  CORCORAN.i 

(106  Mass.  286.) 

Supreme  Judicial  Court  of  Massachusetts. 
Middlesex.    Jan.  Term,  1871. 

A.  V.  Lynde  and  C.  Abbott  (E.  W.  Sanborn 
witli  tbem)  for  plaintiff. 

GRAY,  J.  The  evidence  introduced  at  the 
trial  tended  to  prove  the  following  facts: 
The  plaintiff,  while  engaged  with  his  own 
boats  in  the  Mystic  river,  within  the  ebb  and 
flow  of  the  tide,  found  the  defendant's  boat 
adrift,  with  holes  in  the  bottom  and  the  keel 
nearly  demolished,  and  in  danger  of  sinking 
or  being  crushed  between  the  plaintiff's  boats 
and  the  piles  of  a  bridge,  unless  the  plaintiff 
had  saved  it.  The  plaintiff  secured  the  boat, 
attached  a  rope  to  it,  towed  it  ashore,  fasten- 
ed it  to  a  post,  and  after  putting  up  notices 
in  public  places  in  the  nearest  town,  and 
making  other  inquiries,  and  no  owner  appear- 
ing, took  it  to  his  own  barn,  stowed  it  there 
for  two  winters,  and  during  the  intervening 
summer  made  repairs  (which  were  necessary 
to  preserve  the  boat),  and  for  its  better  pres- 
ervation put  it  in  the  water,  fastened  to  a 
wharf,  and  directed  the  wharhnger  to  deliver 
it  to  any  one  who  should  prove  ownership  and 
pay  the  plaintiff's  expenses  about  it.  The  de- 
fendant afterwards  claimed  the  boat;  the 
plaintiff  refused  to  deliver  it  unless  the  de- 
fendant paid  him  the  expenses  of  taking  care 
of  it;  and  the  defendant  then  took  the  boat  by 
a  writ  of  replevin,  without  paying  the  plain- 
tiff anything.  This  action  is  brought  to  re- 
cover money  paid  by  the  plaintiff"  for  moving 
and  repairing  the  boat,  and  compensation  for 
his  own  care  and  trouble  in  keeping  and  re- 
pairing the  same,  amounting  to  $2G  in  all. 
*    *    * 

The  plaintiff  requested  the  chief  justice  of 
1  Irrelevant  parts  omitted. 

VAN  ZILE,  SEL.  CAS.  PERS.  — 6 


the  superior  court  to  rule  that  the  boat  was 

not  lost  goods,  within  the  sense  of  Gen.   St. 

c.  79.    But  the  learned  judge  refused  so  to 

rule,   and   ruled   that   upon   all  the  evidence 

the  plaintiff  could   not   maintain   his  action, 

and  directed  a  verdict  for  the  defendant.    We 

are    of    opinion    that    this    was   erroneous. 
*    *    * 

The  claim  of  the  plaintiff  is  therefore  to  be 
regulated  by  the  common  law.  It  is  not  a 
claim  for  salvage  for  saving  the  boat  when 
adrift  and  in  danger  on  tide  water,  and  does 
not  present  the  que.stion  whether  the  plain- 
tiff had  any  lien  upon  the  boat,  or  could  re- 
cover for  salvage  services  in  an  action  at 
common  law.  His  claim  is  for  the  reasonable 
expenses  of  keeping  and  repairing  the  boat 
after  he  had  brought  it  to  the  shore;  and  the 
single  question  is  whether  a  promise  is  to  be 
implied  by  law  from  the  owner  of  a  boat,  up- 
on taking  it  from  a  person  who  has  found  it 
adrift  on  tide  water  and  brought  it  to  shore, 
to  pay  him  for  the  necessary  expenses  of  pre- 
serving the  boat  while  in  his  possession.  We 
are  of  opinion  that  such  a  promise  is  to  be 
implied.  The  plaintiff,  as  the  tinder  of  the 
boat,  had  the  lawful  possession  of  it,  and  the 
right  to  do  what  was  necessary  for  its  pres- 
ervation. Whatever  might  have  been  the  lia- 
bility of  the  owner  if  he  had  cliosen  to  let  the 
finder  retain  the  boat,  by  taking  it  from  him 
he  made  him.self  liable  to  pay  the  reasonaltle 
expenses  incurred  in  keeping  and  repairing 
it.  Nicholson  v.  Chapman,  2  H.  Bl.  2.^4,  2.J8, 
and  note;  Amory  v.  Flyn,  10  Johns.  102; 
Tome  V.  Four  Cribs  of  Lumber.  Taney,  533, 
547,  Fed.  Cas.  No.  14,083;  3  Dane,  Abr.  143; 
Story,  Bailm.  §§  121a.  621a;  2  Kent,  Comm. 
(6th  Ed.)  3.56;  1  Domat,  pt.  1,  lib.  2,  tit.  9, 
art.  2;  Doct.  &  Stud.  c.  51;  Preston  v.  Neale, 
12  Gray,  222,    Exceptions  sustained. 

See  Reeder  v.  Anderson's  Adm'rs,  4  Dana, 
193. 


b2 


LOST  PROPERTY 


WOOD  et  al.  v.  PIER  SON.  i 
(7  N.  W.  SSS.  45  Mich.  313.1 
Supreme   Court   of   Michigan.     Jan.   19,    ISSl. 
Hatch    &    Cooley,    for    plaintiffs    in    error. 
Shepard  &  Lyon,  for  defendant  in  error. 

GRAVES.  J.  *  *  *  Piersou  lost  at  Bay 
City.  July  IS,  1S78,  a  small  diamond  pin, 
which  seems  to  have  separated  from  the 
tongue  in  some  unknown  way.  The  circimi- 
stances  of  the  loss  and  the  manner  in  which 
the  body  of  the  pin  and  tougrue  became  dis- 
imited  are  left  unexplained.  The  metallic 
setting  was  a  common  pattern,  and  the  gem 
had  no  peculiarities  to  facilitate  its  identifica- 
tion by  nonexperts.  Piei"son  caused  a  notice 
to  be  inserted  in  the  Tribune  newspaper  pub- 
lished in  the  city,  of  this  tenor:  "Lost.  $25.00 
Reward— Lost.  A  diamond  pin.  The  finder 
will  be  paid  the  above  reward  by  leaving  the 
same  at  this  office."  As  will  be  observed, 
the  advertisemeut  neither  gave  a  description 
of  the  pin,  nor  suggested  who  offered  the  re- 
ward. Moreover,  no  means  of  any  kind  were 
provided  for  showing  at  the  newspaper  office 
the  owuei-ship  or  identity  of  the  pin.  or  for 
connecting  any  pin  which  might  be  produced 
with  the  claim  contained  in  the  notice,  nor 
was  any  money  left  with  which  to  pay  the 
reward,  nor  any  provision  whatever  made  for 
paying  it  there. 

Chapman  foimd  a  pin  which  was  subse- 
quently ascertained  to  be  the  one  in  question. 
His  first  impression  was.  when  he  picked  it 
up,  that  it  was  a  cheap  trinket,  but  on  second 
thought  he  decided  to  show  it  to  a  jeweler. 
Dirt  was  adhering  to  it,  and  attention  was 
at  once  drawn  to  the  fact  that,  although  the 
tongue  was  wholly  missing,  the  rivet  was  se- 
cure and  firmly  in  its  place.  The  query  nat- 
urallj'  arose  as  to  how  this  condition  of  the 
pin  and  the  absence  of  the  tongue  might  be 
accounted  for.  But  in  order  to  find  out  wheth- 
er it  had  any  material  value.  Chapman  took 
it  immediately  to  Wood,  the  other  defendant, 
he  being  a  .ieweler,  and  was  by  him  told  that 
the  stone  was  a  diamond,  and  that  a  diamond 
pin  had  been  advertised  in  the  Tribune. 

On  getting  this  information.  Chapman  went 
at  once  to  the  newspaper  office  and  saw  Mr. 
Shaw,  the  editor  and  manager,  who  showed 
him  the  advertisement  and  informed  him  who 
the  author  was.  Mr.  Shaw  referred  him  for 
anything  further  to  Mr.  Pierson.  and  he  at 
once  carried  the  pin  to  Pierson's  store  and 
called  for  that  gentleman.  He  was  absent. 
Chapman  was  going  from  the  city  the  next 
morning,  and  lie  told  a  clerk,  Mr.  Martin,  that 
he  had  foimd  a  pin.  and  as  he  was  going  away 
he  would  leave  it  at  Mr.  Wood's  to  be  identi- 
fied and  returned  to  the  owner.  He  then  went 
to  Wood's  and  there  left  it  with  instructions 
to  give  it  to  the  person  who  should  identify 
it  and  pay  the  reward,  and  to  no  one  else. 
This   was   Friday   evening,    July   2Gth.     The 


1  Irrelevant  parts  omitted. 


next  morning  he  went  from  the  city  on  busi- 
ness, and  only  retin*ned  the  Monday  following 
at  noon.  During  his  absence  Piereou  called 
on  Wood  and  asked  to  see  the  pin  in  order 
to  identifj-  it,  and  AVood  declined  and  required 
him  to  identify  it  first.  Pierson  attempted  to 
do  so,  but  he  failed  to  satisfy  Wood,  and  in 
the  judgment  of  another  jeweler  to  whom  both 
referred,  and  who  had  the  advantage  of  in- 
specting both  the  tongue  and  body  of  the  pin 
and  of  comparing  them,  the  physical  appear- 
ances and  indications  were  strongly  against 
Pierson's  claim. 

*  *  :^  *  *  * 

According  to  the  common  law  the  finder  of 
goods  lost  on  land  becomes  proprietor  in  case 
the  true  owner  does  not  appear.  And  mean- 
while his  right  as  finder  is  a  perfect  riglit 
against  all  others.  But  if  the  true  owner 
does  appear,  whatever  right  the  finder  may 
have  against  him  for  recompense  for  the  care 
and  expense  in  the  keeping  and  preservation 
of  the  property,  his  status  as  finder  only  does 
not  give  him  any  lien  on  the  property.  Yet 
if  such  owner  offer  a  reward  to  him  who  will 
restore  the  property,  a  lien  thereon  is  there- 
by created  to  the  extent  of  the  reward  so  of- 
fered. This  doctrine  in  favt)r  of  a  lien  in 
such  circumstances  is  so  laid  down  in  Pres- 
ton V.  Ne;tle,  12  Gray,  222,  and  atithorities 
are  cited  for  it.  Among  them  is  the  leading 
case  of  Wentworth  v.  Day,  by  Chief  Justice 
Shaw,  reported  in  3  Mete.  352,  and  which  is 
approved  and  followed  by  the  supreme  court 
of  Pennsylvania  in  Cummings  v.  Gann,  52  Pa. 
St.  4S4,  adopted  as  correct  by  Storj-  in  his 
work  on  Bailments  (sections  121a  and  621a). 
Parsons  has  given  it  his  sanction  by  incorpo- 
rating it  in  the  text  of  his  work  on  Contracts 
(volume  3,  p.  239,  (ith  Ed.),  and  Edwards  pre- 
sents it  as  settled  law  in  his  treatise  on  Bail- 
ments (sections  20,  OS.  6th  Ed.). 

Under  this  principle  the  admission  is  tm- 
avoidable  that  when  Pierson  claimed  the  pin. 
on  the  footing  of  his  notice  and  rew^ard,  of 
Chapman,  the  finder,  who  was  holding  it  for 
the  actual  owner,  it  was,  as  between  them, 
subject  to  a  lien  in  Chapman's  favor  and 
against  Pierson  for  the  reward.  According 
to  the  language  of  the  books  Chapman  was  en- 
titled to  detain  the  article  from  Pierson  until 
the  reward  should  be  paid,  and  was  under 
no  legal  obligation  to  relinquish  possession  to 
him.  or  to  give  it  to  another,  or  to  allow  any- 
thing to  be  done  endangering  his  right  or  se- 
curity. But  there  was  a  mutuality  of  rights. 
As  claimant,  Pierson  was  entitled  to  a  rea- 
sonable time  and  to  fair  and  reasonable  op- 
portimity  in  reference  to  the  nature  of  the 
chattel,  the  existing  state  of  things  bearing 
on  the  transaction  and  the  surroimding  cir- 
cumstances, and  without  impairing  Chapman's 
right  as  contingent  owner,  nor  his  right  of 
lien,  nor  interfering  with  his  duty  to  the  time 
ownership  which  might  be  subsequently  as- 
serted by  anotlier,  to  make  such  a  showing  as 
he  could  that  the  property  was  the  same  he 
had  lost   and   advertised,    and   such   evidence 


LOST  PROPERTY. 


83 


as  would  satisfy  a  fair  and  reasonable  person 
of  the  fact. 

It  was  not  for  Chapman  to  baffle  investi- 
gration  by  any  unfair  action  or  inaction,  or 
to  give  way  to  unfounded  and  unreasonable 
suspicion,  and  then  object  that  the  evidence 
of  identification  was  not  sufficient.  Nor  was 
it  for  Pierson  to  demand  anything  which  was 
not  fair  and  just  under  the  circumstances, 
and  needful  for  investigation,  and  consistent 
with  Chapman's  rights  and  duties,  and  then 
maJie  its  refusal  a  pretext  for  charging  in- 
justice, and  an  excuse  for  making  costs;  and 
in  regard  to  these  and  similar  matters  it  was 
for  the  jury  to  say  what  was  the  conduct  of 
the  parties;  whether  it  was  fair  and  reasonable 
or  otherwise;  whether  either  or  both  material- 
ly deviated  from  the  proper  course;  whether 
the  kind  of  reciprocity  the  occasion  called  for 
was  shown  or  not,  and  whether  Chapman  was 
boimd  or  not  to  be  satisfied  of  the  rectitude 
of  Piei"son's  claim  when  the  suit  was  begun. 

Iti  *  *  *  df  ^i 

In  Isaac  v.  Clark,  2  Bulst.  30<J.  Lord  Coke 
states  the  law  in  this  wise:  "When  a  man 
doth  finde  goods,  it  hath  been  said,  and  so 
commonly  held,  that  if  he  doth  dispossess  him- 
self of  them,  by  this  he  shall  be  discharged,  but 
this  is  not  so,  as  appears  by  12  Edw.  IV.  13, 
for  he  which  findes  goods  is  bound  to  an- 
swer him  for  them  who  hath  the  proixn-ty; 
and  if  he  deliver  them  over  to  any  one,  unless 
it  be  to  the  right  owner,  he  shall  be  charged 
for  them,  for  at  the  first  it  is  in  his  election, 
whethe-  he  will  take  them  or  not  into  his  cus- 
tody; hut  when  he  hath  them,  one  onely  hatli 
then  right  unto  them,  and  therefore  he  ought 
to  keep  them  safely;  if  a  man  therefore  which 
findes  goods,  if  he  be  wise,  he  will  then  search 
out  the  right  owner  of  them,  and  so  deliver 
then*  unto  him;  if  the  owner  comes  unto 
Mm  and  demands  them,  and  he  answers  him, 
tha-  it  is  not  known  imto  him  whether  he  be 
the  true  owner  of  the  goods,  or  not,  and  for 
this  cause  he  refuseth  to  deliver  them,  this 
refusal  is  no  con^^rsion,  if  he  do  keep  them 
for  him." 

Lord  Coke  veiy  clearly  enforces  the  right 
and  duty  of  the  finder  to  be  certain  of  the 
true  owner  before  he  makes  delivery.  As 
he  is  bound  to  hold  for  the  true  owner,  and 
is  liable  in  case  of  misdelivery,  tlie  law  makes 
it  his  duty  as  well  as  his  right,  even  when 
there  is  no  reward,  to  "search  out,"  or,  in 
other  language,  find,  the  "right  owner,"  or 
see  to  it  that  he  submits  to  no  other  than  the 
"right  owner."  Undoubtedly,  if  Chapman's 
conduct  was  such  that  a  juiy  would,  luider 
the  circumstances  of  the  case,  feel  satisfied 
that  he  was  actually  perverse  and  unreason- 
able, and  pursued  a  course  which  was  adapt- 


ed to  baffle  fair  investigation,  instead  of  main- 
taining the  attitude  of  a  man  whose  duty  it 
was,  in  the  quaint  terms  of  Lord  Coke,  to 
"search  out  the  right  owner."  it  would  be 
just  to  regard  him  as  having  detained  the 
property  unlawfully. 

The  neglect  to  tender  the  reward,  if  it  was 
still  claimed,  could  not  defeat  the  action. 
Bancroft  v.  Petei-s,  4  Mich.  G19. 

The  remedy  of  trover  was  originally  given 
to  enable  the  loser  of  goods  to  recover  of  the 
finder,  and  the  principle  has  found  recognition 
in  one  of  the  provisions  of  our  action  of  re- 
plevin. Comp.  Laws,  §  G754.  The  statute 
expressly  refers  to  a  case  where  one  party  is 
found  to  have  a  lien  and  the  other  the  gen- 
eral ownership,  and  the  court  is  required  to 
render  such  judgment  as  shall  be  just.  The 
provision  did  not  escape  the  attention  of  the 
court  below.  It  was  mentioned  in  the  charge. 
The  parties  respectively  ignonvl  tin-  statute 
concerning  lost  property  and  pLinled  them- 
selves on  the  common  law,  and  hence  there 
seems  to  be  no  occasion  to  notifv  the  fonner. 

The  charge  given  by  the  learn<Ml  judge  was 
very  elaborate.  In  some  essential  particu- 
lars it  seems  open  to  a  construction  not  con- 
sistent with  the  views  which  are  here  explain- 
ed. But  it  is  not  needful  to  specifj'  the  ob- 
servations referred  to. 

It  is  enough  to  say  now,  that  wliatever  may 
have  been  intended,  the  charge  as  we  liud  it 
in  the  record  must  have  been  received  by  the 
jury  as  instructing  them  that  the  defendants 
were  boimd  to  submit  the  pin  to  the  personal 
inspection  of  the  plaintiff  on  his  reiiuest.  as 
a  safe  and  proper  expedient  for  the  purpose 
of  "searching  out  the  right  owner,"  and  they 
could  not  have  supposed  that  it  was  subinlttetl 
to  them  to  decide  according  to  their  own 
judgment  of  the  circumstances  whether  the 
defendant  ought  or  ought  not  to  have  allowed 
such  inspection.  The  question  was  not  for 
the  bench,  but  for  tht  juiy,  under  suitable  in- 
structions. 

The  case  has  several  features  which  de- 
mand a  very  strict  adherence  to  the  nile  which 
restricts  the  province  of  the  judge  to  the 
conveyance  of  such  matters  of  law  to  the  ju- 
ry as  the  case  calls  for,  and  assigns  to  the 
jurj'  the  deternfination  of  all  matters  of  fact. 
No  doubt  the  unusual,  if  not  unprecedented, 
characteristics  of  the  litigation,  and  the  ordi- 
naiy  hurry  of  a  trial,  may  explain  all  of  the 
incidents  which  on  careful  review  appear  to 
be  incapable  of  support. 

The  result  is  t>iiat  tlie  judgment  nnist  be  re- 
versed, with  costs,  and  a  new  trial  granted. 


MARSTON, 
concurred. 


C.    J.,    and    CAMPBELL,    J.. 


84 


LOST  PROPERTY. 


BAKER  T.  STATE. 

(29  Ohio  St.  1S4.) 

Supreme  Conrt  of  Ohio.    Dec.  Term.  1S76. 

Error  to  probate  court.  Van  Wert  county. 

On  information  in  the  probate  court  of  Van 
Wert  county  (a  court  having  jurisdiction  of 
misdemeanors),  the  defendant  was  convicted 
of  the  offense  of  petit  larceny.  At  the  trial  a 
bill  of  exceptions  was  taken,  setting  out  all 
the  testimony,  and  this  writ  is  prosecuted  to  | 
revei*se  the  judgment  below,  on  the  ground 
that  the  conviction  was  contrary  to  the  law 
and  the  evidence. 

Alexander  &  Saltzgaber,  for  plaintiff  in  er- 
ror. 

McILVAIXE.  J.  The  testimony  offered  on 
the  trial  below  shows  that  on  the  evening  of 
April  2S.  1S72.  the  defendant  below  found  on 
a  county  public  road,  at  Van  Wert  county,  a 
jxicketbook,  containing  one  ten  dollar  bill,  at 
a  point  in  the  road  near  which  he  had  been 
engaged  at  work  during  the  day,  and  that 
the  goods  found  had  been  lost  by  the  owner, 
Hinton  Alden,  at  that  point  a  few  hours  be- 
fore. That  Alden.  at  the  time  he  lost  the 
pocketbook,  had  been  detained  at  that  point 
for  a  short  time,  and  within  plain  sight  of 
the  defendant.  On  the  next  morning.  Alden, 
who  lived  in  the  immediate  neighborhood,  in- 
formed the  defendant  of  his  loss,  but  defend- 
ant concealed  the  fact  of  finding,  and  after- 
wards expendetl  the  money  in  the  purchase  of 
clothing.  A  few  days  after,  the  defendant 
admitted  to  a  witness  in  the  case  that  he  had 
found  the  pocketbook,  and  that  he  knew  the 
owner;  and  on  inquiry  why  he  had  not  re- 
turned the  goods  to  the  owner,  replied  that 
"Finders  are  keepers."     It  was  also  shown  by 


an  admission  of  defendant  that  the  appear- 
ance of  the  pocketbook  at  the  time  he  found 
it  indicated  that  it  had  been  very  recently 
lost. 

The  law  of  this  case  is  well  stated  by  Baron 
Parke,  in  Reg.  v.  Thurborn,  1  Dennison, 
Crown  Cas.  3ST.  also  reported  under  the  name 
of  Reg.  V.  Wood.  3  Cox  Crown  Cas.  4.53,  thus: 
"If  a  man  find  goods  tliat  have  actually  been 
lost,  or  are  reasonably  supposed  by  him  to 
have  l>een  lost,  and  appropriates  them  with 
intent  to  take  the  entire  dominion  over  them, 
really  believing  when  he  takes  them  that  the 
owner  cannot  be  found,  it  is  not  larceny. 
But  if  he  taJies  them  with  like  intent,  though 
lost  or  reasonably  supposed  to  be  lost,  but 
reasonably  believing  that  the  owner  can  be 
found,  it  is  larceny."' 

The  fact,  in  this  case,  that  the  defendant 
expended  the  money  after  he  had  certain 
knowledge  of  the  owner,  did  not  render  him 
guilty  of  larceny,  if  the  offence  was  not  com- 
plete before.  The  loss  and  finding  of  the 
goods  were  not  disputed  in  the  court  below, 
but  the  following  questions  were  made:  1. 
When  the  defendant  first  took  the  goods  upon 
the  finding,  did  he  intend  to  appropriate  them 
to  his  own  use?  This  question  was  fairly 
found  against  him,  from  the  fact  of  concealing 
the  finding  when  informed  by  the  owner  of 
his  loss,  and  from  his  subsequent  declaiation 
that  "Finders  are  keepers."  2.  Did  he  have 
reasonable  grounds  to  believe  at  the  time  of 
finding  the  goods,  that  the  owner  could  be 
found?  It  was  suflieiently  proved  that  the 
defendant  knew  that  the  goods  had  been 
recently  lost  before  the  finding,  and  that  Al- 
den had  recently  been  at  the  point  where  he 
found  them.  These  facts  constituted  reason- 
able ground  for  believing  that  Alden  was  the 
owner.     Judgment  affirmed. 


CONFUSION   OF  GOODS. 


85 


PICKERING  V.  MOORE. 

(32  Atl.  828.) 

Supreme  Court  of  New  Hampshire.    Merri- 
mack.     March   IG,   1894. 

Action  by  Lueian  Pickering  against  Lydia 
A.  Moore.     Judgment  for  plaintiff. 

Facts  found  by  the  court:  March  31,  1883, 
the  defendant  leased  his  farm  for  the  term 
of  three  years  to  the  plaintiff,  who  covenant- 
ed to  carry  on  the  place  in  a  husband-like 
manner,  and  to  consume  and  convert  into 
manure,  to  be  used  or  left  upon  the  premises, 
all  hay  and  fodder  raised  thereon.  The  plain- 
tiff occupied  the  farm,  and  performed  all  his 
covenants  contained  in  the  lease,  without 
any  new  or  further  contract,  until  May  30, 
1892.  During  the  last  year  of  his  occupancy 
he  fed  out  upon  the  farm  a  large  quantity 
of  fodder  not  produced  on  the  place.  He  put 
25  cords  of  the  manure  made  from  this  fod- 
der, and  manure  of  the  same  quality  and 
value  made  from  fodder  raised  on  the  place, 
together  in  a  heap,  where  they  were  so  in- 
termixed that  they  could  not  be  distinguish- 
ed. The  defendant  prevented  him  from  tak- 
ing away  the  25  cords. 

Leach  &  Stevens,  for  plaintiff.  Albin  & 
Martin,  for  defendant. 

CARPENTER,  J.  The  plaintiff  held  the 
farm  alter  the  expiration  of  three  years  as 
tenant  from  year  to  year,  upon  the  terms 
expressed  in  the  lease.  Russell  v.  Fabyan, 
34  N.  H.  218,  223;  Conway  v.  Starkweather, 
1  Denio,  113.  Manure  made  upon  a  farm  l)y 
the  consumption  of  its  products  in  the  ordi- 
nary course  of  husbandry  is  a  part  of  the 
realty.  It  cannot  be  sold  or  carried  away 
by  a  tenant  without  the  landlord's  consent. 
Sawyer  v.  Twiss,  26  N.  H.  345.  349;  Perry  v. 
Carr,  44  N.  H.  118,  120;  Hill  v.  De  Roche- 
mont,  48  N.  H.  87,  88.  The  doctrine  "was 
established  for  the  benefit  of  agriculture. 
It  found  its  origin  in  the  fact  that  it  is  es- 
sential to  the  successful  cultivation  of  a  farm 
that  the  manure  produced  from  the  drop- 
pii'gs  of  cattle  and  swine  fed  upon  the  prod- 
ucts of  the  farm,  and  composed  with  earth 
and  vegetable  matter  taken  from  the  land, 
should  be  used  to  supply  the  drain  made  upon 
the  soil  in  the  production  of  crops,  which 
otherwise  would  become  impoverished  and 
barren,  and  in  the  fact  that  the  manure  so 
produced  is  generally  regarded  by  farmers  in 
this  country  as  a  part  of  the  realty,  and  has 
been  so  treated  by  landlords  and  tenants 
from  time  immemorial."  Haslem  v.  Look- 
wood,  37  Conn.  500,  505.  Whether  a  tenant, 
"where  there  is  no  positive  agreement  dis- 
pensing with  the  engagement  to  cultivate  his 
farm  in  a  husband-like  manner,  is  bound  to 
spend  the  hay  and  other  like  produce  upon 
it  as  the  means  of  preserving  and  continuing 
its  capacity"  (Perry  v.  Carr  and  Hill  v.  De 
Rochcuiont,  supra).— in  other  words,  whether 
the  express  or  implied  obligation  to  cultivate 


the  farm  in  a  husband-like  manner  binds 
him.  as  matter  of  law,  to  convert  into  manure 
all  the  fodder  grown  on  the  premises, — is  a 
different,  and  po.ssibly  an  open,  question 
(Wing  V.  Gray,  36  Vt.  261,  266,  267;  Lewis 
v.  Lyman,  22  Pick.  437,  444,  445;  Middle- 
brook  V.  Corwin,  15  Wend.  169,  and  cases 
cited;  Brown  v.  Crump,  1  Marsh.  C.  P.  567; 
Legh  V.  Hewitt,  4  East,  154,  159;  Moulton 
V.  Robinson,  27  N.  H.  550,  561 ;  Cooley,  Torts, 
334,  343,  344).  However  that  may  be.  no 
rule  of  good  husbandry  requires  a  tenant  to 
buy  haj-  or  other  fodder  for  consumption  on 
the  farm.  If,  in  addition  to  the  stock  main- 
tainable from  its  protlucts,  he  keeps  cattle 
for  hire,  and  feeds  them  upon  fodder  pro- 
cured by  purchase,  or  raised  by  him  on  other 
lands,  the  landlord  has  no  more  legal  or 
equitable  interest  in  the  manure  so  produced 
than  he  has  in  the  fodder  before  it  is  con- 
sumed. It  is  not  made  in  the  ordinary  course 
of  husbandry.  It  is  produced  "in  a  manner 
substantially  like  making  it  in  a  livery  sta- 
ble." Hill  V.  De  Rochomont,  48  N.  H.  87, 
90;  Corey  v.  Bishop.  48  N.  H.  146.  148.  It  is 
immaterial  whether  the  additional  stock  is 
kept  for  hire,  or  is  the  tenant's  property. 
Needham  v.  Allison,  24  N.  H.  355. 

The  plaintiff  did  not  lose  his  property  in 
the  manure  by  intemiixing  it  with  the  de- 
fendant's manure,  of  the  same  quality  and 
value,  without  his  consent.  It  is  not  claimetl 
that  the  plaintiff  mixed  the  manure  with  any 
fraudulent  or  wrongful  intent.  "The  inten- 
tional and  innocent  intermixture  of  property 
of  substantially  the  same  (juality  and  value 
does  not  change  the  ownership.  And  no  one 
has  a  right  to  take  the  whole,  but,  in  so  do- 
ing, commits  a  trespass  on  the  other  owner. 
He  should  notify  him  to  make  a  division,  or 
take  his  own  proportion  at  his  peril,  taking 
care  to  leave  to  the  other  owner  as  much  as 
belonged  to  him."  Ryder  v.  Hathaway.  21 
Pick.  298.  306;  Oilman  v.  Hill,  36  N.  H.  311. 
323;  Robinson  v.  Holt,  39  N.  H.  5.57,  563; 
Moore  v.  Bowman.  47  N.  H.  494.  501,  502; 
Railroad  Co.  v.  Foster.  51  N.  H.  490.  493. 
"Even  if  the  coumiingling  were  malicious  or 
fraudulent,  a  rule  of  law  which  would  take 
from  the  wrongdoer  the  whole,  when  to  re- 
store to  the  other  his  proportitm  would  do 
him  full  Justice,  would  be  a  rule  not  in  har- 
mony with  the  general  rules  of  civil  remedy, 
not  only  because  it  would  award  to  one  party 
a  redress  beyond  his  loss,  but  because  it 
would  compel  the  other  party  to  pay.  not 
damages,  but  a  penalty."  Cooley,  Torts,  53, 
54. 

Whether  the  parties  were  tenants  in  com- 
mon of  the  manure  is  a  question  that  need 
not  be  determined.  Gardner  v.  Dutch,  9 
Mass.  427.  4;H),  431;  Ryder  v.  Hathaway,  21 
Pick.  298,  305;  Chapman  v.  Shepard.  39 
Conn.  413.  425;  Kimberly  v.  Patchin,  19  N. 
Y.  330,  341.  Assuming  that  they  were,  the 
action  may  be  maintained.  A  tenant  in  com- 
mon has  the  same  right  to  the  use  and 
enjoyment  of  the  common  property  that  he 


86 


CONFUSIOiT  OF  GOODS. 


has  to  his  sole  property,  except  in  so  far  as 
it  is  limited  by  the  equal  right  of  his  coten- 
ants.  "Where  two  have  each  an  equal  title  to 
an  indivisible  chattel,  "as  of  a  horse,  an  oxe, 
or  a  cowe."  neither,  "without  actual  and  ex- 
clusive possession  of  the  chattel,  can  enjoy 
bis  moiety.  Simultaneous  enjoyment  by  each 
of  his  equal  right  is  impossible.  Hence  nei- 
ther can  lawfully  take  it  from  the  possession 
of  the  other.  The  one  excluded  from  posses- 
sion has  no  legal  remedy,  except  to  take  it 
"when  he  can  see  his  time."  Co.  Litt.  §  323; 
Southworth  v.  Smith,  27  Conn.  35.5.  359.  A 
tenant  in  common  of  personal  as  well  as  real 
property  has  a  right  to  partition,  if  parti- 
tion is  possible,  and.  if  not.  to  a  regulation 
of  its  use  equivalent  to  partition,  or  to  a 
sale.  Co.  Litt.  164,  165a;  Stoughton  v. 
Leigh.  1  Taunt.  402.  411,  412:  Monill  v.  Mor- 
rill. 5  X.  H.  134,  135;  Crowell  v.  Woodbury, 
52  X.  H.  613.  On  partition  be  is  entitled  to 
no  particular  part  of  the  property,  but  only 
to  bis  due  proportion  in  value  and  quality 
of  the  whole.  When  it  consists  of  chattels 
differing  in  quality  and  value,  an  appraisal 
of  the  value  and  consideration  of  the  quali- 
ties of  the  several  chattels  are  essential  to 
an  assignment  to  each  of  his  just  share.  In 
this  case,  as  in  that  of  a  single  indivisible 
chattel,  if  the  parties  cannot  agree  upon  the 
use,  sale,  or  division,  judicial  inteiTention  is 
necessary.  Until  an  adjudication  of  their 
rights,  neither  can  assert  a  title  in  severalty 
to  any  portion  of  the  property.  When  the 
common  property  is  divisible,  by  weight, 
measure,  or  number,  into  portions  identical  in 
quality  and  value,  as  corn  and  various  other 
articles,  a  different  case  is  presented.  There  '; 
no  question  of  legal  or  equitable  righ. . 
There  is.  and  can  be.  no  dispute  that  a  court 
of  law  or  equity  can  settle.  Counting,  weigh- 
ing, and  measuring  are  not  judicial,  but  min- 
isterial, functions.  Equity  could  do  no  more 
than  decree  that  each  might  take  so  many 
pounds,  bushels,  or  yards,  or  so  many  of  the 
articles  in  number,  and  enforce  its  decree  by 
process.— in  other  words,  enforce  the  conced- 
ed right.  One  may.  in  general,  do  without  a 
decree  what  equity  would  decree  that  he 
might  do.  Neither  law  nor  equity  allows  one, 
in  the  exercise  of  his  own  rights,  to  do  an 
unnecessary  and  avoidable  injm-y  to  another. 
One  is  entitled  to  the  possession  of  the  whole 
in  those  cases  only  where  it  is  necessary  to 


his  enjoyment  of  his  moiety.  Here  it  is  not 
necessary.  There  is  no  more  difficulty  in  sep- 
arating one  portion  from  another  than  there 
is  in  selecting  A.'s  marked  sheep  from  B.'s 
flock.  Either  may  make  the  division.  The 
law  is  not  so  unreasonable  as  to  compel  a  re- 
sort to  the  com*ts  in  order  to  obtain  a  parti- 
tion which  either  may  make  without  ex- 
pense, and  without  danger  of  injustice  to  his 
cotenanL  Except  in  Daniels  v.  Brown.  34  N. 
H.  454,  it  has  never  been  held,  so  far  as  ob- 
served, that  a  tenant  in  common  is  liable  to 
his  cotenant,  in  any  form  of  proceeding,  for 
taking  from  the  latter's  possession,  and  con- 
suming or  destroying,  his  just  proportion, 
only,  of  the  common  propei*ty.  The  convey- 
ance by  a  tenant  in  common  of  a  part  of  the 
common  land  by  metes  and  bounds  may  effect 
a  partition,  and  will  if  it  does  no  injustice  to 
his  cotenants,— if  theii'  just  share  can  be  as- 
signed to  them  out  of  the  remaining  land. 
:  Holbrook  v.  Bcwman.  62  N.  H.  313.  .321.  No 
'  reason  is  per-'^ived  why  a  similar  doctrine 
should  not  oe  applied  in  the  case  of  a  com- 
mon tenancy  of  chattels.  If  A.  and  B.  own 
,  in  common  100  horses,  and  B.  sells  10  of 
them  to  C,  why  'hould  A.  be  permitted  to 
take  them  "when  he  can  see  his  time."  if  he 
has  possession  of,  and  can  have  his  full  share 
assigned  to  him  from,  the  remaining  90? 
However  that  may  be,  a  tenant  in  common 
of  goods  divisible  by  tale  or  measure  may, 
without  the  consent  and  against  the  will  of 
his  cotenant,  rightfully  take  and  appropriate 
to  his  sole  use.  sell,  or  destroy,  so  much  of 
them  as  he  pleases,  not  exceeding  his  share, 
and  by  so  doing  effect,  pro  tanto.  a  valid  par- 
j  tition.  To  this  extent.  Daniels  v.  Brown, 
I  supra,  is  overruled.  Haley  v.  Colcord.  59  X. 
H.  8;  Gage  v.  Gage.  66  V.  H.  2S2,  2&8,  29 
Atl.  543;  Selden  v.  Hickock.  2  Caines.  166; 
Lobdell  V.  Stowell,  51  N.  Y.  70,  and  cases 
cited;  Stall  v.  Wilbur,  77  N.  Y.  158,  164; 
Cooley,  Torts,  455:  6  Am.  Law  Rev.  455-4.59, 
and  cases  cited.  The  defendant,  by  prevent- 
ing the  plaintiff  from  taking  his  part  of  the 
manure,  exercised  a  dominion  over  it  incon- 
sistent with  the  plaintiff's  rights.  Evans  v. 
Mason.  64  N.  H.  98,  5  Atl.  766.  Judgment  for 
the  plaintiff. 

WALLACE,    J.,   did   not  sit.     The   others 
concurred. 
I       See  Wetherbee  v.  Green,  22  Mich.  311. 


CONFUSION  OF  GOODS. 


87 


GATES  V.  RIFLP]  BOOM  CO. 

(38  N.  W.  245,  70  Mich.  309.) 

Supreme    Court    of   Michigan.    May    18,    1888. 

Error  to  circuit  court,  Bay.  county;  S.  M. 
Green,  Judge. 

Samuel  G.  M.  Gates  brought  an  action  of 
trover  and  conversion  of  a  certain  quantity 
of  white  pine  saw-logs  against  the  Rifle 
Boom  Company.  Judgment  for  defendant. 
Plaintiff  "orings  error. 

Holmes  &  Collins,  for  appellant.  Hanchett 
&  Stark,  for  appellee. 

MORSE,  J.  The  plaintiff,  in  his  lumbering 
operations,  in  1882  cut  over  the  line  upon  the 
adjoining  land  of  Rust  Bros.  &  Co.,  and  there- 
by secured  and  marked  as  his  own  about 
135,000  feet  of  logs  belonging  to  the  latter. 
These  logs  were  mixed  Avitli  the  other  logs 
of  plaintiff,  and  banked  on  the  west  branch 
of  the  Rifle  river.  They  were  not  run  out 
the  following  spring,  but  remained  in  the  roll- 
way  during  the  summer  and  fall  of  1883.  In 
that  year  Rust  Bros.  &  Co.  sent  some  scalers 
Avhere  the  plaintiff's  logs  were,  who  selected 
out,  as  best  they  could,  logs  of  the  same 
quality  as  those  taken  from  the  Rust  lands 
by  plaintiff,  and  about  the  same  quantity, 
and  marked  them  with  the  stamp  of  Rust 
Bros.  &.  Co.  Such  logs  then  bore  two  brands, 
the  mark  of  plaintiff,  "C.  O.  W.,"  and  the 
Rust  mark,  "7  R.  7."  Under  the  usual  con- 
tract by  plaintiff  with  the  defendant  boom 
company  these  logs,  intermingled  with  other 
logs  of  the  plaintiff,  were  driven  down  the 
stream  in  the  summer  of  1884,  and  received 
in  the  defendant's  boom.  The  defendant  was 
notified  by  Rust  Bros.  &  Co.  not  to  deliver 
the  logs  with  the  double  marks  upon  them 
to  plaintiff.  The  boom  company  thereupon 
delivered  the  double-marked  logs,  about  155- 
000  feet,  to  Rust  Bros.  &  Co.,  who,  finding 
that  more  were  marked  by  t'neir  scalers  than 
they  were  entitled  to,  returned  to  plaintiff 
20.590  feet  of  the  same.  The  plaintiff,  after 
demanding  these  logs  of  the  boom  company, 
and  after  its  refusal  to  deliver  them,  brought 
this  suit  in  trover  in  the  circuit  court  for  the 
county  of  Bay.  The  cause  was  there  tried 
before  a  jury,  and  verdict  and  judgment 
passed  for  the  defendant.  The  plaintiff  in 
this  court  as^signs  as  error  the  following  in- 
stmctions  given  by  the  court:  "If  the  plain- 
tiff cut  the  logs  innocently,  supposing  them 
to  be  upon  his  own  laud,  and  mixed  them 
with  his  own  so  that  they  could  not  be 
identified,  and  after  they  became  mixed  with 
his  own,  so  that  the  logs  cut  from  Rust  Bros. 
&  Co.'s  lands  could  not  be  identified,  then 
Rust  Bros.  &  Co.  had  the  right  to  select 
from  the  common  mass  a  quantity  of  an  aver- 
age cjuality  of  their  own,  equal  to  the  quan- 
tity taken  from  their  land."  And  also,  in 
the  same  connection,  after  having  stated  the 
rule  as  to  willful  trespasses,  instructing  the 
jury  further  as  follows:    "But  a  different  rule 


prevails  where  a  party  innocently  mingles 
his  property  with  that  of  another,  and  where 
it  is  undistinguishable,  and  where  the  general 
quality  and  character  of  the  property  is  the 
same,  as  in  the  case  of  the  same  kind  of 
logs,  white  pine,  if  you  please,  and  of  the 
same  general  quality  as  near  as  may  be. 
There,  if  the  logs  are  confused,  neither  party 
loses  his  own.  Both  partie:<  have  a  right  to 
their  own,  and  neither  party  being  able  to 
distinguish  his  own,  the  party  whose  prop- 
erty has  been  mingled  with  another's  prop- 
erty by  the  act  of  that  other  party  may  take 
so  nmch  of  the  common  mass  as  he  has 
in  it." 

It  was  claimed  by  the  plaintiff  upon  the 
trial,  and  he  so  testified,  that  the  logs  taken 
by  Rust  Bros.  &  Co.  were  of  greater  value 
in  quality  than  those  cut  by  him  from  their 
lauds.  The  quantity  cut  by  him  on  the  Ru.st 
lands  was  not  claimed  to  be  less  than  the 
quantity  taken  by  Rust  Bros.  &  Co.  It  there- 
fore became  material  to  ascertain,  upon  the 
trial,  whether  the  plaintiff  was  a  willful  tres- 
passer, or  cut  the  logs  innocently,  in  good 
faith,  believing  that  he  was  within  the  lines 
of  his  own  laud.  The  court  instructed  the 
jury  as  to  the  difference  between  a  willful 
and  an  unintentional  trespass,  stating  to 
them,  in  substance,  that  if  the  trespass  was  a 
willful  one,  if  Gates  knew  he  was  cutting 
the  logs  of  Rust  Bros.  &  Co.,  and  so,  know- 
ing them  not  to  be  his,  intermingled  them 
with  his  own  tliat  they  could  not  be  dis- 
tinguished, Rust  Bros.  Ai  Co.  had  a  right  to 
take  more  than  their  own,  and  if,  in  order  to 
get  all  that  belonged  to  them,  and  without 
intending  to  take  more  than  belonged  to 
them,  they  did  take  a  better  quality  of  logs 
than  they  had  lost,  if  they  did  not  make  the 
selection  with  that  view,  the  plaintiff  could 
not  recover  for  such  excess  in  quality;  but 
if  the  plaintiff  cut  the  logs,  and  marked  and 
mingled  them  with  his  own,  in  good  faith, 
believing  them  to  be  his  own,  then,  if  Rust 
Bros.  &,  Co.  took  more  than  they  were  en- 
titled to,  the  plaintiff  might  recover  the  ex- 
cess. The  counsel  for  the  plaintiff  very  ably 
and  foi'cibly  contended  in  the  argument  here 
that  if  the  plaintiff"  was  innocent  of  any 
wrong,  he  was  entitled  to  recover  in  this  ac- 
tion, if  Rust  Bros.  «t  Co.  took  no  more  logs 
in  quality  or  quantity  than  were  cut  upon 
their  lands,  the  difference  between  the  value 
of  the  logs  and  the  value  of  the  standing  tim- 
ber, that  Rust  Bros.  &  Co.  could  claim  no 
more  than  the  value  of  the  stumpage.  He 
argues  that  if  Rust  Bros.  &  Co.,  under  the 
same  circumstances,  had  sued  the  plaintiff 
in  trover  for  the  value  of  the  timber  so  cut, 
the  measure  of  damages  would  have  been  the 
value  of  the  stumpage.  and  that  they  could 
not  have  recovered  what  they  obtained  in 
this  suit,  the  value  of  the  logs,  representing 
not  only  the  value  of  the  standing  timber, 
but  also  the  worth  of  the  labor  of  plaintiff 
added  thereto.  Citing  Ayres  v.  Hubbard.  57 
ISIich.  322,  23  N.  W.  Rep.  829.     The  object  of 


S3 


CONFUSION  OF  GOODS. 


the  law  beinjr,  in  both  cases,  to  enable  the 
party,  deprived  of  his  property  to  receive 
compensation  therefor,  he  aslis,  "Why  should 
the  man  who  strictly  follows  the  law.  and 
adopts  a  legal  course  of  procedure"  to  obtain 
his  property  be  in  a  worse  position,  and  re- 
ceive less  than  he  who  uses  force  or  strategj- 
to  recover  possession  of  his  property?  He 
claims  that  in  this  case  the  plaintiff  added 
innocently  to  the  value  of  this  timber  the 
cost  of  cutting  and  putting  in  the  logs,  which 
was  the  sum  of  S-'2.'27>  i>ev  thousand  feet,  and 
also  the  value  of  the  driving  and  booming 
cliarges.  He  estimates  this  value  at  over 
S300.  But  in  the  hrst  place  it  seems  to  me 
that  this  amount,  the  value  of  the  plaintiff's 
labor  and  expenses  upon  the  logs,  could  not 
be  recovered  in  an  action  of  trover.  The 
logs  were  still  the  property  of  Rust  Bros.  & 
Co.  The  trespasser,  however  innocent,  could 
acquire  no  property  in  these  logs,  nor  could 
he  acquire  a  lien  upon  them  for  such  labor 
and  expense.  The  conversion  of  trees  into 
saw-logs  by  a  trespasser  does  not  change 
the  title  to  the  property,  nor  destroy  the 
identity  of  the  same.  The  owner  of  the  land 
is  the  owner  of  the  logs,  and  the  trespasser 
has  no  title  to  them.  Therefore  when  he 
regains  his  own,  he  lias  converted  no  property 
of  the  trespasser  to  his  own  use.  Stephen- 
son v.  Little.  10  Mich.  433;  Final  v.  Backus, 
IS  Mich.  21S-232;  Mining  Co.  v.  Hertin,  37 
Mich.  337;  Arpin  t.  Burch,  6S  Wis.  610,  32 
N.  W.  681;  Winchester  v.  Craig,  33  Mich. 
20.j;  Grant  v.  Smith,  26  Mich.  201;  Tuttle  v. 
White,  46  Mich.  4S.5,  9  N.  W.  .".28.  In 
the  case  of  Mining  Co.  v.  Hertin,  37  ilich. 
337,  the  trespasser  sought  to  recover  in  a 
special  count  in  assumpsit  for  the  value  of 
his  labor  expended  in  cutting  the  wood.  In 
this  case,  if  any  action  would  lie  for  the 
labor  of  cutting  the  logs  and  the  expense  of 
getting  them  into  the  stream  and  down  to 
the  boom  it  would  seem  that  the  plaintiff's 
remedy  would  be  iu  assumpsit.  But  in  the 
case  above  refen-ed  to  it  was  held  that  he 
could  not  recover  the  benefit  of  his  labor  at 
all.  There  can  be  no  doubt  that  the  rule  is 
weU  settled  in  this  state  that  if  Rust  Bros. 
&  Co.  had  taken  possession  of  these  logs 
while  they  were  lying  upon  their  lands,  they 
would  have  been  entitled  to  them  as  they 
were,  and  that  no  claim  could  have  been 
made  against  them  by  the  plaintiff  for  the 
labor  and  expense  of  cutting  them.  The 
identity  of  the  timber  would  not  then  have 
been  destroyed,  and  the  subsequent  inter- 
mingling of  these  logs  with  the  logs  of  plain- 
tiff, although  innocently  done,  could  not 
change  the  rights  of  the  owners.  The  evi- 
dence shows  that  between  the  time  Rust 
Bros.  &  Co.  discovered  the  trespass  and  the 
time  they  took  possession  of  the  logs  by 
marking  them,  no  labor  or  money  was  ex- 
pended by  the  plaintiff  upon  them.  There- 
fore it  follows  that  as  this  case  stood  the 
plaintiff  had  no  claim  upon  Rust  Bros. 
&  Co.  that  he  could  enforce  in  this  action, 


unless  they  took  possession  of  a  better  qual- 
ity of  logs  than  he  cut  upon  their  premises 
and  the  same  amount  or  more  in  quantity, 
and  his  trespass  and  intermingling  of  the 
propeity  was  innocently  done.  And  the  court 
was  right  in  his  interpretation  of  the  law  as 
to  innocent  trespassers.  The  seeming  injus- 
tice pointed  out  in  the  argument  of  the  plain- 
tift''s  coimsel  is  not  an  injustice,  but  the  re- 
sult of  the  election  of  the  owner  to  take  less 
than  he  is  by  the  law  entitled  to.  The  own- 
er of  standing  timber  is  not  only  entitled  to 
the  timber,  but  he  has  a  right  to  it  as  it  is, 
and  to  keep  it  uncut  if  he  so  desires.  Xo 
man,  however  innocently  he  may  do  it.  can 
go  upon  his  land  and  convert  the  standing 
trees  into  logs  and  charge  him  for  the  labor 
thus  expended  against  his  will,  and  perhaps 
against  his  real  benefit.  He  may  prefer  to 
have  the  timber  to  stand,  and  if  left  standing 
a  few  years  may  bring  him  immense  profit. 
Such  instances  have  not  been  rare  in  the  his- 
tory of  pine  timber  in  this  state.  The  sup- 
posed enhancement  of  his  property  by  the 
labor  of  the  trespasser  may  thus  turn  out  to 
be  a  positive  injury.  There  is  no  injustice 
in  holding  tliat  the  trespasser  must  lose  the 
labor  he  has  expended  in  converting  another's 
trees  into  logs.  Such  trespasses,  though  cas- 
ual and  not  willful,  are  ordinarily,  as  was 
the  trespass  in  this  case,  the  result  of  negli- 
gence upon  the  part  of  the  trespasser,  and 
there  is  no  good  reason  why  he  should  be 
recomj^ensed  for  labor  and  expenses  incurred 
in  the  trespass  when  it  might  have  been 
avoided  by  proper  diligence.  The  owner  has 
the  right  to  reclaim  his  logs,  but  if  he  sees 
fit  to  bring  an  action  of  trespass  or  trover  in- 
stead of  regaining  his  propei-ty  he  volunta- 
rily puts  himself  within  the  rtile  of  damages 
prevailing  in  such  actions,  and  thereby  elects 
to  receive  only  a  just  and  fair  compensation 
for  his  property  as  it  was  before  the  trespass- 
er intermeddled  with  it.  The  trespasser  can- 
not complain  of  this,  neither  can  he  complain 
if  he  elects  to  take  his  property  if  he  can 
find  it.  As  was  well  said  in  Mining  Co.  v. 
Hertin.  supra:  "Nothing  could  more  encour- 
age carelessness  than  the  acceptance  of  the 
principle  that  one  who  by  mistake  performs 
labor  upon  the  property  of  another  should 
lose  nothing  by  his  error." 

The  further  and  only  question  in  the  case  is 
the  alleged  eiTor  of  the  circuit  judge  in  reject- 
ing the  offer  of  the'plaiutiff  to  prove  by  Harvey 
Parker  that  while  said  Parker  was  foreman 
for  the  plaintiff",  and  was  at  work  on  the  80- 
acre  tnict  adjoining  the  40-acre  tract  claimed 
by  Rust  Bros.  &  Co.,  and  before  all  of  the  logs 
had  been  hauled  from  the  strip  of  real  estate 
in  dispute  in  this  case,  said  McTavish  and 
Gates  then  being  at  the  camp.  McTavish, 
while  there,  made  no  complaint  or  objection 
as  to  where  they  were  cutting;  made  no 
claim  that  plaintiff  and  his  men  had  com- 
mitted a  ttespass;  and  in  answer  to  a  question 
by  said  Parker,  after  Gates  had  gone  away, 
McTavish  said  the  line  plaintiffs  men  had  cut 


CONFUSION  OF  GOODS. 


89 


to  was  all  right.  And  in  siistainins  the  de- 
fendant's objection  to  the  following  question 
to  the  said  Harvey  Parker:  "Did  you  have 
any  talk  with  McTavish  about  the  line  to 
which  you  had  cut?"  the  counsel  for  the 
plaintiff  claims  that  this  evidence  was  material 
and  competent  as  bearing  upon  the  good  faith 
of  the  plaintiff  in  cutting  the  timber;  that  it 
does  not  appear  from  the  verdict  of  the  jury 
whether  they  found  such  trespass  willful  or 
not.  It  was  conceded  that  Rust  Bros.  &  Co. 
took  about  the  quantity  of  logs  they  were  en- 
titled to,  biit  if  they  took  a  much  better  qual- 
ity, as  plaintiff  claimed  they  did,  and  the  tres- 
pass was  found  by  the  jury  to  have  been  an 
innocent  one,  the  plaintiff's  counsel  claims  that 
there  should  have  been  and  probably  would 
have  been  a  verdict  in  his  favor  for  the  vahie 
of  the  excess  in  quality  so  taken.  In  deter- 
mining the  competency  and  materiality  of  the 
proposed  proof  it  will  be  necessaiy  to  enter 
somewhat  into  the  facts  of  the  trespass.  Mc- 
Tavish was  a  land-looker,  and  a  woodsman 
and  general  foreman,  looking  after  the  differ- 
ent lumber  camps  of  Rust  Bros.  &  Co.,  and 
looking  after  trespasses  committed  upon  their 
lands,  but  not  having  any  authority  to  locate  or 
agree  upon  the  boundaries  of  such  lands.  The 
plaintiff  called  upon  McTavish,  before  he  did 
any  cutting,  and  asked  him  if  he  would  go 
with  him  and  see  if  they  could  not  locate  the 
line  between  his  land  and  that  of  Rust  Bros. 
&  Co.  He  does  not  state  that  he  supposed  Mc- 
Tavish had  any  authority  to  locate  the  line. 
Ho  says:  "I  bad  known  him  a  good  many 
years,  and  knew  him  as  a  man  in  the  employ 
of  the  Rusts."  "Question.  You  knew  he  was 
their  agent  and  their  woodsman?  Answer.  I 
believed  him  to  be  a  good  land-looker.  I  ask- 
ed him  if  he  would  go  with  me  and  see  if  we 
could  locate  the  line  between  28  and  29  north, 
of  the  quarter  post.  He  said  he  knew  where 
the  south  section  corner  of  the  section  was. 
We  will  go  there  and  see  if  we  can  find  it." 
They  went  up  into  the  woods,  and  undertook 
to  run  out  the  line.  They  disagree  somewhat 
in  their  testimony.  As  they  were  pacing  on 
the  supposed  line  the  plaintiff  did  some  blazing. 
:McTavish  testified  that  he  forbade  this  bla;^- 
ing.  saying  to  Gates  that  there  was  no  telling 
whether  they  were  right  or  not,  as  they  were 
running  the  line  out  with  a  pocket  compass. 
He  says:  "I  told  Mr.  Gates  at  the  time  that 
there  was  timber  enough  along  the  line,  who- 
ever lumbered  there  tirst.  to  have  that  line  es- 
tablished by  a  surveyor,  and  he  made  the  re- 
mark then  that  that  line  would  be  just  a  guide 
for  him  when  he  went  in  there  again  to  know 


about  whei'e  he  was;"    and   they  agreed  that 
it  should  be  surveyed  before  it  was  lumbered. 
Gates   testified    that   he  blazed    the  line   they 
ran  out.     That  at  one  point  McTavish  said: 
"I  don't  know,  we  may  not  be  just  right  here, 
and  perhaps  you  hadn't  better  blaze."     I  says: 
"It  will  be  a  guide  to  us  to  know  where  we 
have  come,  and   I   will  continue  the  blazing 
until  you  get  to  the  corner."     That  McTavish 
said  that  he  was  satisfied  that  was  the  right 
line,  and  said  further:    "That  line  is  as  correct 
a  line  as  we  can  get  through  here;   but  as  tim- 
ber is  thick  on  the  line  down  below  between 
you  and  Rust  you  ought  to  have  a  sui-veyor 
run  a  compass  course  from  this  corner  to  this 
quarter  post  to  be  sure,  as  I  have  dodged  a 
little  in   traveling   north.     We  have  come  as 
straight  as  we  could."     To  this,  Gates  says,  be 
assented.     No  line,   however,  was   run   by   a 
surveyor    until    after    the    cutting.      Harvey 
Parker  was  the  foreman  of  the  plaintiff.     Mc- 
Tavish was  asked,  on  cross-examination,  if  he 
did  not  have  a  conversation  with  Parker  about 
this  line,   and  answered  that  he  did   not  re- 
member it,  but  said  that  he  stayed  one  night 
at  his   camps  and   presumed   he  told   Parker 
that  the  plaintiff  had  cut  to  the  line  that  he 
and  Gates  ran.     Denied  ever  stating  to  him 
that  the  cutting  was  all  right,  or  that  they  had 
the  right  line.     This  conversation,  if  any  was 
had,  was  after  the  cutting  of  the  logs.     The 
offered   evidence   of    Parker    was   rejected   at 
first  by  the  court  upon  the  ground  that  it  was 
not  competent  because  it  tocdc  place  after  the 
cutting.     Parker  afterwards  testified  that  at 
the  time  of  the  talk  the  timber  was  all  cut  off 
of  this  stiip  belonging  to  the  Rusts,  and  that 
some  of  the  logs  had  been   taken   off;    (hat 
Gates  was  not  present  when  the  conversation 
took  place;   and  there  was  no  evidence  offered 
to   show  that   Gates  ever  knew   of  the   talk. 
Thereupon  the  coiul  ruled  that  it  was  not  ma- 
terial.    We  think  the  court  did  not  err  in  the 
ruling.     jMcTavish  had   no  authority  to  bind 
the  Rusts,  and  what  he  nnght  have  said  after 
the   trespass   was  conunitted   could    have   no 
bearing  upon  the  question  of  the  good  faith  of 
the  plaintiff,  especially  when  thi're  was  no  evi- 
dence that  Gates  was  informed  of  what  Mc- 
Tavish said.     Xor   was  it  admissible   as   im- 
peaching testimony  not  being  material  to  the 
issue. 

The  judgment  of  the  coint  below  must  there- 
fore be  affirmed,  with  costs. 

SIIKRWOOD.  C.  J.,  and  CIIAMPLIX  and 
LONG,  J  J.,  concurred.  CAMPBELL,  J.,  did 
not  sit. 


DO 


CONFUSION  OF  GOODS. 


FIRST  NAT.  BANK  OF  DENVER  v. 
SCOTT. 

(54  N.  W.  987,  36  Neb.  607.) 

Supreme  Court  of  Nebraska.      April  11,  1893. 

Error  to  district  court,  Webster  county; 
Cochran,  Judge. 

Action  of  replevin  by  the  First  National 
Bank  of  Denver  against  Henry  C.  Scott  to 
recover  a  quantity  of  tlour  and  feed.  There 
was  judgment  for  defendant,  and  plaintiff 
l>riugs  error.     Affiriueil. 

J.  S.  Gilham  and  Case  &  McNeny,  for 
plaintiff  in  error.  St.  Clair  &  McPheely,  for 
defendant  ia  error. 

MAXWELL,  C.  J.  On  the  21st  of  Decem- 
ber, 1888,  the  Red  Cloud  Milling  Company 
executed  a  bill  of  sale  to  the  plaintiff  in 
error  on  '"all  the  flour,  feed,  meal,  and  grain 
of  all  kinds,  manufactured  and  rmmanufac- 
tured,  now  in  the  mill,  elevator,  cribs,  and 
warehouse  of  the  Red  Cloud  Milling  Com- 
pany at  Red  Cloud,  Nebraska,  lOU  head 
of  steers,  cows,  and  calves,  now  in  the 
feed  yards  of  the  said  milling  company,  one 
span  of  black  mai-es,  one  set  of  double 
harness,  one  lumber  wagon,  all  grain  on 
track  at  Red  Cloud,  Nebr."  At  the  time 
this  bill  of  sale  was  executed  there  were 
about  GO  tons  of  flour,  and  a  large  amount  of 
bran  and  feed,  in  and  attached  to  the  mill. 
There  seems  to  have  been  no  immediate 
change  of  possession.  Prior  to  the  execu- 
tion of  the  bill  of  sale  the  milling  company 
had  ordered  several  cars  of  wlieat  from  the 
defendant  in  error,  and  on  the  22d  of  that 
month  one  car  was  shipped  by  him  to  the 
milling  company  from  Axtell,  Neb.,  and  was 
received  on  December  24th  of  that  year, 
and  a  portion,  at  least,  was  ground  into 
flour,  and  mixed  with  the  other  flour  stored 
in  the  mill,  and  the  like  mixture  seems  to 
have  been  made  of  the  wheat.  The  defend- 
ant ui  error  thereupon  commenced  an  action 
by  attachment  against  the  milling  company 
to  recover  the  value  of  the  car  of  wheat, 
viz.  619  5-6  bushels  of  wheat  at  90  cents  per 
bushel,  amounting  to  $557.85.  The  return 
of  the  sheriff  on  the  order  of  attachment 
is  as  follows:  "Dec.  29th,  1888.  Received 
this  order,  and,  according  to  the  comuiimd 
thereof,  I  did  on  the  same  day,  at  11  o'clock 
A.  M.  in  the  presence  of  H.  H.  Eckman  and 
Weslej'  Street,  two  credible  persons,  resi- 
dents of  the  county,  attach  the  following- 
goods  and  chattels,  to  wit:  About  3(X> 
bushels  of  wheat,  valued  at  80c.,  $240; 
1,050  504b.  sacks  of  R.  C.  flour,  $1.37i/2, 
$1,443.75;  20  50-lb.  sacks  of  White  Loaf 
at  $1,621/^,  $32.50;  130  50-lb.  sacks  of  New 
Deal  at  $1.00  per  sack,  $130,— and,  after  ad- 
ministering an  oath  to  said  H.  H.  Eckman 
and  Wesley  Street  to  malce  a  time  inven- 
tory and  valuation  of  said  property  in  writ- 
ing, I  then  made  an  inventory  and  appraise- 
ment of  said  property,  which  is  lierewith  re- 
turned. I  also  on  the  same  day  delivered 
to   said   defendants   the   Red   Cloud   ^Milling 


Co.,  by  D wight  Jones,  President.  &  R.  D. 
Jones,  Secy.,  a  certifled  copy  of  this  writ. 
After  getting  1,200  sacks  of  flour  I  relensed 
aU  wheat,  and  it  was  turned  back  to  Dwight 
Jones,  president  of  the  Red  Cloud  ^Milling 
Co.  H.  C.  Scott,  Sheriff.  By  J.  C.  Warner, 
Dept."  The  plaintiff  in  error  thereupon 
brought  an  action  of  replevin,  and  reclaimed 
the  property. 
The  defendant,  in  answer  to  the  petition, 

alleged  "that  on  or  about  the  day  of 

188-  the  Red  Cloud  Milling  Co.,  a  corpora- 
tion organized  and  doing  business  in  and 
under  the  laws  of  the  state  of  Neb.,  was 
indebted  to  A.  G.  Scott  &  Son  in  the  sum 
of  $1,000.35,  in  a  cause  of  action  arising 
upon  the  purchase  by  said  Red  Cloud  INIill- 
ing  Co.  of  a  quantity  of  wheat  of  the  said 
A.  G.  Scott  &  Son,  and  on  said  last-named 
date  the  said  A.  G.  Scott  &,  Son  commenced 
an  action  by  attachment  against  the  said 
Red  Cloud  Milling  Co.  in  the  district  court 
of  Webster  county,  Neb.,  and  caused  an 
order  of  attachment  for  the  sum  of  $1,000.35 
to  be  issued  hi  said  cause,  and  deUvered  to 
the  defendant  aforesaid,  as  sheriff,  to  levy; 
that  under  and  by  virtue  of  said  order  of 
attachment,  and  in  pursuance  of  tlie  com- 
mand thereof,  the  defendant,  as  such  sher- 
iff, levied  upon  1,050  sacks  of  wheat  flour 
'Red  Cloud  Brand,'  20  sacks  of  Avheat  floiu* 
'White  Loaf  Brand,'  and  130  sacks  of  wheat 
flour  'New  Deal  Brand,'  being  the  goods 
and  chattels  mentioned  in  said  petition  here- 
in, and  took  the  same  into  his  custody;  that 
said  flom-  •\\as  at  tlie  time  of  said  levy,  and 
still  is,  the  sole  property  of  the  said  Red 
Cloud  Milling  Co.,  and  was  liable  to  be 
levied  upon  for  the  satisfaction  of  said  debt, 
and  taken  under  said  order  of  attachment 
for  the  satisfaction  of  the  same;  that  said 
action  is  still  pending  and  imdecided  in  said 
district  court;  that  the  defendant,  under 
and  by  virtue  of  said  writ  of  attachment, 
held  the  po&session  of  said  flour  until  on  or 
about  the  27th  day  of  March,  1889,  when 
the  same  was  taken  from  his  possc^ssion 
and  custody  by  C.  Schenck,  coroner  of  s:iid 
Webster  county,  Neb.,  by  virtue  of  a  writ 
of  replevin  in  this  action.  Wherefore  de- 
fendant prays  a  return  of  said  goods,  or, 
if  a  return  cannot  be  had,  then  for  the 
value  thereof  to  the  extent  of  said  order 
of  attachment,  to  wit,  $1,000.35,  with  inter- 
est and  costs  of  suit."  On  the  trial  of  the 
cause  the  jury  returned  a  verdict  in  favor 
of  the  defendant  in  error  for  the  sum  of 
$557.85  and  1  cent  damages.  They  also 
found  the  value  of  the  property  levied  upon 
was  $1,200. 

1.  A  number  of  objections  are  made  on  be- 
half of  the  plaintiff  in  error  to  one  of  the 
instructions.  In  our  view,  however,  these 
objections  are  not  material,  as  it  is  evident 
that  the  verdict  is  the  only  one  that  should 
be  rendered  imder  the  proof.  It  is  clearly 
shown  that  a  car  of  wheat  containing  6,19.5 
!  bushels  was  received  and  placed  in  the 
!  mill   after   the   bill   of   sale   was   executed. 


CONFUSION  OF  GOODS. 


91 


This  was  not  covered  by  the  bill  of  sale, 
and  therefore  the  party  using  it  is  Uable 
for  its  value.  The  plaintiff  in  error  claims 
to  have  been  in  possession  of  the  mill,  and 
was  running  it,  when  the  wheat  was  re- 
ceived, and  therefore  is  liable  for  the  same, 
and  the  jury  so  found.  The  case  is  sim- 
ple, and  did  not  require  a  volume  of  instnic- 
ticns  for  the  guidance  of  the  jury.  Judg- 
ment was  rendered  in  the  attachment  case 
in  favor  of  the  defendant  in  error  be- 
fore the  trial  in  this  case  took  place,  and 
$347.50  appears  to  have  been  realized  from 
the  property  attached  therein.  The  judg- 
ment on  the  attachment  in  favor  of  the  de- 
fendant in  error,  and  against  the  milUng 
company,  was  for  the  sum  of  $1,029.35  and 
costs,  from  which  the  sum  of  $347.50, 
amount  due  from  garnishees,  is  to  be  de- 
ducted. The  jury  in  the  case  at  bar,  how- 
ever, found  that  as  against  the  plaintiff  in 
error  the  recovery  should  only  be  for  the 
value  of  the  car  of  wheat. 

2.  Objections  are  made  to  a  general  levy 
of  the  attachment  upon  the  property  of  the 
plaintiff  in  error.  We  do  not  care  to  impute 
wrong  motives  to  the  plaintiff  in  error  in 
appropriating  the  wheat.  AVhere  a  confu- 
sion of  goods  is  made  fraudulently,  by  one 
who  owns  a  part  thereof,  and  after  being 
made  it  is  impossible  to  identify  or  appoi'- 
tion  the  property  of  each  owner,  the  one 
not  at  fault  will  be  entitled  to  the  whole. 
This  is  upon  the  principle  that  a  party,  by 
wrongfully  mixing  the  goods  of  another, 
cannot    thereby    deprive    the    other    of '  his 


properly,  or  profit  by  his  own  wrong. 
Therefore,  it  being  impossible  to  separate 
the  mass,  he  must  lose  the  whole.  Jewett 
V.  Dringer,  30  N.  J.  Eq.  291.  But  forfei- 
tures are  not  favored  in  law,  and  it  must  be 
an  extreme  case  that  will  justify  the  taking 
of  the  property  of  one  person,  and  giving  it 
to  another.  Whenever  it  is  possible,  there- 
fore, to  make  a  division  of  the  property, 
and  give  to  each  one  his  share,  a  court  will 
make  such  division.  Thus  in  Chandler  v. 
De  Graff,  25  Minn.  8S,  where  the  plaintiff 
delivered  to  the  defendant  about  20,000  rail- 
road ties  in  excess  of  the  contract,  which 
the  defendant  refused  to  accept,  btit  had 
mingled  the  same  with  those  which  were 
accepted  so  that  they  were  undistinguJsh- 
able,  the  plaintiff  was  permitted  to  take 
out  of  the  mass  of  the  tics  the  number 
of  such  excess.  The  same  nile,  in  sub- 
stance, was  applied  in  Stone  v.  Quaale, 
(Minn.)  29  N.  W.  Kep.  320;  Arthur  v.  Rail- 
way Co.,  61  Iowa,  048,  17  N.  W.  Rep.  24; 
Inglebright  v.  Hammond,  19  Ohio,  337.  Al- 
though the  conversion  of  the  wheat  to  flour 
was  made  without  the  consent  of  the  de- 
fendant in  error,  yet  the  property  in  its 
changed  form  is  susceptible  of  a  fair  divi- 
sion, and  tins  seems  to  have  been  made  by 
the  jury.  The  property  being  susceptible 
of  an  equitable  division,  and  being  so  divid- 
ed, the  plaintiff'  in  error  has  no  cause  of 
complaint.  The  judgment  is  right,  and  is 
affirmed.     The  other  judges  concur. 

See  Starke  v.  Paine,  55  N.  W.  185,  85  Wis. 
033. 


92 


PATENTS. 


WOOD  et  al  v.  PACKER. 

(17  Fed.  G50.) 

Circuit  Court,  D.  New  Jersey.    July  14,  1883. 

In  equity. 

P.  C.  Lrowtborp,  Jr.,  for  complainant. 
James  Buchanan,  for  defendant. 

NIXON,  J.  This  action  is  brought  against 
the  defendant  for  infringing  certain  reissued 
letters  patent.  No.  9,3as,  dated  August  81, 
ISSO.  The  Delaware  Coal  &  Ice  Company 
was  the  owner  of  the  original  patent.  No.  73,- 
684,  and  brought  suit  in  this  court  against  the 
same  defendant  for  their  infringement.  It 
was  found,  upon  examination,  that  although 
the  patentee  in  his  specifications  stated  the 
nature  of  his  invention  to  consist  in  the  fun- 
nel-sliaped  mouth  attached  to  the  cart,  in  com- 
bination with  the  chute  and  valve,  he  had 
failed  to  make  any  claim  for  such  combina- 
tion; and  as  none  of  the  separate  constitu- 
ents, as  set  forth  in  the  three  claims,  w'ere 
new,  the  court  was  obliged  to  hold  that  the 
defendant  was  not  shown  to  have  infringed 
anything  claimed  in  the  complainant's  pat- 
ent. Since  then  the  original  patent  has  been 
surrendered,  and  a  reissue  obtained,  with 
quite  a  different  statement  of  the  inventor's 
claims.  They  are  as  follows:  (1)  The  com- 
l)inntion  of  the  body  of  a  coal  cart  Avith  a 
sliding  extension  chute,  substantially  as  and 
for  the  purpose  set  forth;  (2)  the  combina- 
tion of  the  body  of  a  coal  cai't  and  the  outlet, 
having  a  gate  or  valve,  with  a  sliding  exten- 
sion chute,  adapted  to  the  said  outlet,  sub- 
stantially as  specified. 

The  answer  sets  up  three  defenses:  (1) 
That  the  reissue  is  void  because  the  combina- 
tion claimed  is  an  expansion  of  the  original; 
(2)  want  of  novelty  in  the  patent;  (3)  non- 
infringement. 

The  second  is  the  only  one  of  these  de- 
fenses which  seems  to  have  merit,  or  which 
has  been  the  occasion  of  any  serious  or  ex- 
tended inquiry.  Do  the  specifications  and 
claims  of  the  patent  as  reissued  indicate  in- 
vention on  the  part  of  the  patentee?  The 
patent  is  for  a  combination,  the  constituents 
of  Avhich  are  stated  in  the  claims  above  quot- 
ed. There  is  no  difference,  in  fact,  between 
the  claims,  except  that  the  second  has  one 
element  which  is  not  named  in  the  first,  to- 
wit,  the  outlet,  having  a  gate  or  valve,  and 
which  is  the  means  of  communication  be- 
tAveen  the  first  and  third  constituents  of  the 
combination.  Its  absence  gives  much  force 
to  tlie  argument  of  the  learned  counsel  of  the 
defendant,  that  the  first  claim  is  void  be- 
cause the  parts  are  old,  and  there  is  no  de- 
l>endence  or  co-operation  in  their  action 
whereby  any  new  result  is  obtained.  A  mere 
aggregation  of  old  things  is  not  patentable, 
and,  in  the  sense  of  the  patent  law.  is  not  a 
combination.  In  a  combination,  the  element- 
al parts  must  be  so  united  that  they  will  de- 
pendently  co-operate  and  produce  some  new 


and  useful  result.  A  coal  cart  is  not  novel, 
nor  is  the  chute  for  conducting  coal  from  the 
cart  to  the  place  of  its  destination.  These 
two  instrumentalities  are  aggregated  in  the 
first  claim;  but  no  mechanism  is  suggested 
whereby  the  coal  can  be  got  out  of  the  cart 
and  into  the  chute.  The  complainant  (Wood) 
testifies  as  a  witness  that  it  can  be  accom- 
plished by  the  use  of  a  man  with  a  shovel. 
This  is  probably  true;  but  it  is  difH.cult  to 
see  how  the  inventive  faculty  is  put  in  ex- 
ercise by  anj'  such  arrangements.  It  is  not 
necessary,  however,  to  dwell  upon  this  view 
of  the  case,  because  the  entire  reissue  will 
not  be  avoided  on  account  of  the  existence 
of  one  void  claim.  See  Carlton  v.  Bokee,  17 
Wall.  463. 

The  constituents  of  the  second  claim  of  the 
reissue  are  (1)  the  cart  or  wagon;  (2)  the  out- 
let, with  a  gate  or  valve;  and  (3)  the  sliding 
extension  chute.  The  patentee  was  asked 
whether  he  thought  any  of  these  elements, 
separated  from  the  others,  was  novel,  (Com. 
Rec.  28,  29,)  and  replied,  "I  do  not  think  they 
are,  but  only  in  combination." 

The  case  is  then  presented  here  which  was 
considered  by  the  supreme  couii:  in  Hailes  v. 
Van  Wormer,  20  Wall.  368,  and  in  which  Mr. 
Justice  Strong,  speaking  for  the  whole  court, 
said:  "All  the  devices  of  wiiich  the  alleged 
combination  is  made  are  confessedly  old.  No 
claim  is  made  for  any  one  of  them  singly  as 
an  independent  invention.  It  must  be  con- 
ceded that  a  new  combination,  if  it  produces 
new  ,and  useful  results,  is  patentable,  though 
all  the  constituents  of  the  combination  were 
well  known  and  in  common  use  before  the 
combination  was  made.  But  the  results  must 
be  a  product  of  the  combination,  and  not  a 
mere  aggregate  of  several  results,  each  the 
complete  product  of  one  of  the  combined  ele- 
ments. *  *  *  Merely  bringing  old  devices 
into  .iuxtaposition  and  then  allowing  each  to 
Avork  out  its  oAvn  effect,  without  the  produc- 
tion of  something  novel,  is  not  invention." 

The  question,  then,  is  in  regard  to  the  sec- 
ond claim  of  the  complainant's  reissue:  Is 
it  a  patenable  combination,  producing  new 
and  useful  results,  or  is  it  a  mere  aggrega- 
tion of  old  elements,  each  working  out  alone 
its  single  individual  effect? 

It  is  not  a  question  of  easy  solution,  for  it 
requires  us  to  find  the  exceedingly  delicate 
line  which  divides  patentability  from  simple 
mechanical  skill,  or  to  ascertain  the  differ- 
ence betAveen  real  iuA'ention  and  a  double 
use  or  application  of  something  that  has  ex- 
isted before.  Mr.  Curtis,  in  section  41  of  his 
treatise  on  the  LaAV  of  Patents,  in  discussing 
this  subject,  says:  "The  subject-matter  of  a 
supposed  invention  is  new,  in  the  sense  of  the 
patent  laAv,  Avheu  it  is  substantially  different 
from  what  has  gone  before  it;  and  this  sub- 
stantial difference,  in  cases  where  other  an- 
alogous or  similar  things  have  beeu  previous- 
ly known  or  used,  is  one  measure  of  the  suffi- 
ciency of  iuA'cution  to  support  a  patent.  Our 
courts  have,  in  truth,  without  always  using 


PATENTS. 


93 


the  same  terms,  applied  the  same  tests  of  the 
sufficiency  of  invention  which  the  EngUsh 
authorities  exhibit  in  determining  wliether  al- 
leged inventions  of  various  kinds  possess  the 
necessary  element  of  novelty;  that  is  to  say, 
in  determining  this  question,  the  character  of 
the  result,  autt  not  the  apparent  amount  of 
skill,  ingenuity,  or  thought  exercised,  has  been 
examined;  and  if  the  result  has  been  sub- 
stantially different  from  what  had  been  ef- 
fected before,  the  invention  has  been  pro-- 
uouuced  entitled  to  a  patent." 

If  all  improvements  upon  existing  organ- 
isms were  patentable,  there  would  be  no 
doubt  about  sustaining  at  once  the  complain- 
ant's patent.  But  sometimes  better  results 
are  produced  by  mere  mechanical  skill,  with- 
out the  exercise  of  invention.  The  law  does 
not  extend  to  or  cover  such  cases  (Smith  v. 
Nichols,  21  Wall.  IIS),  nor  Avhere  the  change 
is  only  in  degree,  and  not  new.  Guidet  v. 
Brooklin,  105  U.  S.  552;  McMurray  v.  Miller, 
IG  Fed.  471. 

The  complainant's  patent  is  undoubtedly  a 
great  improvement  upon  everything  that  went 
before  it.  The  invention  of  William  Bell  (let- 
ters patent  No.  14,.301,  granted  Febniary  2G, 
185G)  was  set  up  by  the  defendant  as  an  an- 
ticipation, and  it  certainly  contains  valuable 
suggestions.  His  dumping  wagon,  however, 
could  not  be  used  for  delivering  coal  in  cellar 
windows,  but  only  for  dumping  it  into  pave- 
ment vault-holes,  where  they  happened  to 
exist  in  front  of  houses,  at  a  proper  distance 
from  the  edge  of  the  pavement,  and  it  seems 
to  lack  adjustability  for  doing  even  this  suc- 
cessfully. 

The  evidence  shows  that  Richard  Hammell, 
a  respectable  citizen  of  Chambersburg,  was 
formerly  engaged  in  the  coal  business  in 
Lambertville,  New  Jersey,  and  that  as  early 
as  1SG3  he  was  in  the  habit  of  using  chutes  in 
delivering  coal  from  a  wagon  into  a  cellar. 
He  thinks  that  he  introduced  the  double  or 
sliding  chutes  in  the  fall  of  18G5,  and  contin- 
ued to  use  them  for  10  years.  The  narrow 
end  of  one  passed  into  the  wider  end  of  the 
other.  He  used  the  double  chutes  when  the 
distance  for  delivery  was  too  far  for  the 
single.  When  the  distance  was  greater  than 
the  single  chute,  they  pushed  them  one  into 
the  other  to  adjust  the  length.     When   the 


distance  was  still  greater,  they  had  chutes 
that  would  reach  any  house.  The  longest 
single  chute  was  IG  feet;  by  combining  them 
they  could  reach  2-t  feet,  or  more,  if  neces- 
sary. When  more  than  one  was  used,  they 
carried  a  light  trestle  to  supixirt  them  in  the 
middle.  *  *  *  They  had  half  a  dozen  sueh 
chutes,  and  when  they  had  occasion  put  them 
together. 

Peter  C.  Hoff  was  also  in  the  coal  business 
in  Lambertville,  in  the  spring  of  18G7,  and 
has  continuetl  therein  ever  since.  He  used 
chutes  of  different  lengths,  made  tapering, 
and  growing  smaller  to  the  end,  which  went 
into  the  cellar.  The  lower  end  would  rest  on 
the  cellar  window,  or  the  place  made  to  put 
in  the  coal.  He  used  more  than  one  at  a 
time,  but  not  frequently.  He  generally  had 
three  chutes, — one  about  7  feet  long,  one 
about  12,  and  the  other  about  14  feet.  Then 
if  the  place  to  put  the  coal  in  was  10  feet 
from  the  line  of  the  street,  he  would  use  two 
chutes,  would  shove  the  small  end  of  the  one 
into  the  larger  end  of  the  other,  with  a  trestle 
under  where  the  connection  was,  and  also 
a  prop  by  the  wagon,— being  a  seat,  board,  or 
something  similar. — in  order  to  hold  it  up  to 
let  the  coal  run  into  the  cellar.  He  used  the 
14-feet  chute  and  the  7-feet  together  in  that 
Avay,  which  was  about  the  longest  distance 
he  ever  used  the  chute.  But  in  all  these 
cases  the  coal  was  shoveled  from  the  wagon 
into  the  chutes,  which  were  not  attached  to 
the  wagon  in  any  way.  This  testimony  ex- 
hibits the  state  of  the  art  when  the  complain- 
ant appeared  with  his  improvement.  He  has 
not  very  largely  exercised  the  inventive  facul- 
ty in  what  he  has  done.  His  combination  is 
so  simple  that  it  seems  wonderful  that  otlier 
persons  did  not  think  of  it.  But  they  did 
not.  and  if  it  has  eCiected  any  new  and  useful 
result  the  law  protects  him  in  its  exclusive 
use.  The  evidence  reveals  that  by  his  com- 
bination of  old  instrumentalities  a  load  of 
coal  can  be  emptied  from  a  cart  into  a  cellar 
without  the  agency  of  a  man  using  a  shovel. 
This  is  a  new  result,  worthy  of  the  notice  of 
the  law,  and  it  is  the  duty  of  the  court  to 
give  to  the  patentee  the  benefit  of  his  inven- 
tion. 

A  decree  must  be  entered  for  the  complain^ 
ant,  and  a  reference  made  for  an  account 


94 


PATENTS. 


PHILLirS  et  al.  v.   KISSER  et  al. 

(2G  Fed.  308.) 

District  Court,  X.   D.   Illinois.    June  29,   1885. 

In  equity. 

Burnett  &  Burnett  for  complainants. 
Peiroe  &  Fisher,  for  defendants. 

BLODGETT,  J.  By  this  bill  complainants 
charjre  defendants  with  the  infringement  of 
reissued  letters  patent  No.  4,212.  issued  to 
complainant,  December  20,  1870,  for  "an  im- 
provement in  wagon  and  car  unloading  ap- 
paratus," the  original  patent,  No.  83,105, 
having  been  issued  to  Noah  Swickard,  Oc- 
tober 13,  1808.  The  leading  feature  in  the 
device  is  the  arrangement  of  two  tilting 
bars  with  a  platform  in  such  manner  that 
the  wheels  of  the  wagon  or  car  to  be  unload- 
ed can  be  brought  to  rest  on  these  bars, 
when,  by  tilting  the  bars,  the  body  of  the 
A-ehicle  is  tipped  to  such  an  angle  as  to 
cause  the  contents  to  slide  or  be  dumped 
out  by  its  own  gravity.  The  defenses  inter- 
posed are:  (1)  That  the  patent  is  void  for 
want  of  novelty;  (2)  that  the  defendants  do 
not  infringe;  (3)  that  the  reissued  patent 
is  for  a  different  invention  from  that  de- 
scribed in  the  original,  and  is  such  an  en- 
largement of  the  specifications  and  claims 
of  the  original  patent  as  to  make  the  reissue 
void. 

The  proof  shows  a  number  of  devices,  pri- 
or to  that  covered  by  this  patent,  for  unload- 
ing cars  or  trucks  by  tilting  the  platform 
on  which  they  stand  so  as  to  cause  the  con- 
tents of  the  car  to  slide  out  or  be  dumiied 
into  a  bin  or  chute;  but  from  the  proof  I 
conclude  that  Swickard  was  the  first  to  pro- 
duce a  device  by  which  the  wagon  was  tip- 
ped or  thrown  into  an  inclined  position,  by 
means  of  vibrating  bars  or  rails,  which  oper- 
ated in  connection  with  a  fixed  or  stationary 
platform;  and  this  arrangement  seems  to  be 
particularly  adapted  to  dumps  for  unloading 
bulk  grain  from  wagons  drawn  by  teams, 
as  the  team  cau  pass  readily  upon  the  fixed 
platform,  the  wheels  being  so  guided  as  to 
be  brought  to  rest  upon  the  rails  or  bars 
forming  part  of  the  vibrating  platform. 

Most,  if  not  all,  the  prior  devices  seem  to 
have  been  specially  adapted  to  unloading 
the  contents  of  cars  or  trucks  run  upon  rail- 
road tracks  or  tram-ways;  but  it  is  notice- 
able that  Swickard  specially  states  that  his 
invention  is  to  be  \ised  for  unloading  wagons 
or  cars,  although  he  only  shows  it  in  use 
as  arranged  for  unloading  wagons.  But  it 
is  suggested  that  if  it  is  applicable  to  the 
unloading  of  cars  it  must  be  radically  chan- 
ged; that,  while  an  ordinary  farm  wagon 
stands  upon  wheels  at  such  height  that  a 
sufficient  inclination  cau  be  obtained  by 
dropping  the  hind  end  down  until  the  rear 
axle  strikes  the  fixed  platform,  the  much 
smaller  wheels  of  a  car  would  cause  the 
axle  to  strike  the  fixed  platform  before  the 


requisite  inclination  was  secured.  It  is, 
however,  undoubtedly  true  that  the  mei'e 
suggestion  of  this  patentee  that  his  machine 
can  be  used  "for  unloading  wagons  or  cars" 
would  not  invalidate  it  as  a  wagon  unloader, 
even  if  it  should  require  inventive  genius 
to  adapt  it  to  the  unloading  of  cai-s;  that 
is,  it  ma 3"  not  be  used  to  unload  cars,  as  the 
word  "car"'  is  commonly  used,  in  contradis- 
tinction to  "wagon,"  yet  it  may  cover  a 
valid  device  for  unloading  a  wagon,  and 
would  be  valid  if  it  is  applicable  to  one 
use,  even  if  it  is  not  applicable  to  all  the 
uses  suggested  by  the  inventor.  The  proof, 
therefore,  shows  that  there  is  some  advan- 
tage in  using  these  tilting  rails  instead  of  si 
tilting  platform.  I  am  of  the  opinion  that 
defense  of  want  of  novelty  is  not  made  out, 
although  I  feel  compelled  to  say  that  in  my 
estimation  there  is  much  reason  for  doubt- 
ing whether  it  requires  anything  more  than 
mere  mechanical  skill  to  adapt  the  older 
devices  to  the  unloading  of  wagons.  The 
patent,  at  least,  must  be  construed  to  stand 
upon  a  very  narrow  basis. 

As  before  stated,  the  original  patent  show- 
ed two  platforms;  that  is,  a  fixed  platform, 
A,  and  a  vibrating  or  tilting  platform,  work- 
ing in  slots  in  the  fixed  platform,  the  pivoted 
balance  bars  being  tied  together  at  their  for- 
ward end  by  a  cross-board,  which  rested  up- 
on the  fixed  platform  when  the  movable  one 
was  level  with  the  fixed  one,  so  that  the 
vibrating  or  tilting  bars  could  not  move  or 
act  independently  of  each  other,  but  must 
raise  or  lower  at  the  same  time.  The  cross- 
board  or  plank,  C,  also  acted  as  a  stop  to 
keep  the  forward  ends  of  the  tilting  rails 
from  dropping  below  the  fixed  platform, 
while,  by  the  arrangement  of  the  keys,  E, 
E.  they  held  the  rear  ends  of  the  tilting  plat- 
form in  place  uutil  the  wagon  was  drawn 
onto  them,  when,  by  means  of  a  lever,  these 
supporting  keys  were  withdrawn,  and  by  a 
slight  effort,  or  the  weight  of  the  operator, 
the  rear  end  of  the  movable  platform  was 
dropped  to  an  angle  required  to  slide  the 
load  from  the  wagon.  Each  of  these  tilting 
rails  also  contains  a  self-acting  dog,  G, 
which  was  intended  to  act  as  a  check  to  pre- 
vent the  wagon  from  running  back  after  it 
had  been  drawn  upon  the  platfoi-m;  and.  in 
order  to  guide  the  wagon  onto  the  tilting 
platform,  the  lid  of  the  hopper  was  made 
long  enough  to  reach  from  inside  to  inside 
of  the  rail,  and  raised  a  couple  of  inches 
above  the  platform,  so  that  it  would  serve  to 
guide  the  wheels  onto  the  tilting  rails. 
There  was  also  fixed  to  the  forward  ends 
of  these  tilting  bars  a  bar  or  hook,  which 
was  intended  to  prevent  the  front  end  of 
the  movable  platform  from  rising  higher 
than  should  be  required  to  secure  the  neces- 
sary slope  of  the  wagon  for  causing  the  load 
to  slide  out. 

The  claims  of  the  original  patent  were: 
"(1>  The  slotted  platform.  A,  in  combination 
with  the  pivoted  balance  bars,  B,  B,  board. 


PATENTS. 


95 


■C,  end-bars,  I,  I,  and  stops,  H,  H,  all  con- 
structed and  operating  substantially  as  and 
for  the  purposes  herein  set  forth.  (2)  The 
pivoted  balance  bars,  B,  B,  provided  with 
one  or  more  self-acting  dogs,  G,  in  combina- 
tion with  the  spring  toggle  keys,  E,  E,  and 
key,  F,  all  constructed  and  operating  as  and 
for  the  purposes  herein  set  forth.  (3j  The 
arrangement  of  the  slotted  platform,  A,  bal- 
ance bars,  B,  B,  and  lid,  D,  to  the  hopper, 
siibstantially  for  the  purposes  set  forth." 

It  will  be  seen  that  the  first  claim  is  for 
the  combination  of  these  two  platforms,  the 
one  fixed  and  the  other  capable  of  the  tilt- 
ing motion  described,  with  the  cross-board 
Avhich  tied  the  forward  ends  of  the  tilting 
rails  together,  and  the  hooks  or  end-bars 
which  limited  the  height  to  which  the  for- 
ward end  of  the  tilting  platform  could  rise. 
The  second  claim  is  for  the  tilting  bars,  pro- 
vided with  one  or  more  self-acting  dogs,  in 
combination  with  the  keys,  by  which  the 
rear  of  the  tilting  r)latfoi-m  was  held  in 
place  while  the  wagon  was  being  drawn 
onto  it;  while  the  third  claim  is  for  the  two 
platforms  and  lid  of  the  hopper  arranged  so 
as    to   act   as   a   wheel-guide. 

The  patent  as  reissued  contains  seven 
claims,  and  the  infringement  in  this  case  is 
charged  as  to  tlie  first,  fifth,  sixth,  and 
seventh  claims.  These  claims,  as  to  which 
infringement  is  charged,  are  as  follows:  "(1) 
The  tilting  platform,  B,  in  combination  with 
platform  or  floor.  A,  as  and  for  the  purposes 
set  forth.  *  *  *  (5)  The  combination  of 
platforms.  A  and  B,  with  a  stop  device.  I, 
for  the  purpose  set  forth.  (6)  The  combina- 
tion of  platforms.  A  and  B,  with  a  receiving 
bin  or  chute,  C,  operated  substantially  as  de- 
scribed, for  the  purpose  set  forth.  (7)  The 
combination  of  platforms,  A  and  B,  with  lid, 
D,  for  the  purposes  set  forth." 

It  is  conceded  that  the  defendants  have 
constructed  grain  dumps  with  tilting  rails, 
each  pivoted  and  working  independently  of 
the  other,  substantially  like  the  defendants' 
Model  A,  in  evidence  in  this  case,  with  some 
variation  as  to  the  mode  of  locking  or  stop- 
ping the  rear  end  of  the  rails  in  place,  and 
one  dump,  like  the  defendants'  Model  B, 
in  which,  as  will  be  seen,  the  forward  ends 
of  the  tilting  rails  are  tied  together  by  a 
cross-plank;  and  the  first  question  I  propose 
to  consider  as  to  this  branch  of  the  case  is 
whether  these  dumps  constructed  by  the  de- 
fendants infringe  either  of  these  claims  of 
the  reissued  patent. 

The  first  claim  of  the  reissue  is  for  the 
tilting  platform,  B,  in  combination  wifli  the 
fixed  platform  or  floor,  A.  In  the  specifica- 
tions of  the  reissue  it  is  said  the  tilting  plat- 
form is  so  constructed  "as  that  its  forward 
end  shall  rest  upon  the  stationary  platform." 
It  must  be  obvious  to  any  one  who  studies 
the  operation  of  these  devices  that  some 
way  must  be  provided  for  holding  the  for- 
ward end  of  the  movable  platform  so  that 
it   will   not   fall   below   the   fixed   platform. 


The  specifications  of  the  reissue  give  no  in- 
structions as  to  how  the  forward  end  of  the 
tilting  platform  is  to  be  constructed,  so  that 
it  shall  rest  on  the  stationary  platform;  but 
the  drawings  show  a  cross-board  which  ties 
the  forward  ends  of  the  two  pivoted  bars 
together,  and  this  cross-board,  when  these 
forward  ends  drop  to  the  level  of  the  fixed 
platform,  must  rest  on  the  fixed  platform, 
and  thus  hold  the  movable  platform  level 
with  the  fixed  platf<irra.  This  mode  of  con- 
struction is  clearly  shown  in  Fig.  2  of  the 
reissue  drawing.  It  may,  as  I  think,  be  cor- 
rectly said  that  this  mode  of  construction 
shown  in  the  drawings  is  only  one  mode, 
and  does  not  limit  the  patentee  to  that  mode 
of  construction  only;  that  is,  he  may,  by  the 
reissued  patent,  use  any  mode  of  construc- 
tion by  which  the  forward  end  of  the  mov- 
able platform  is  made  to  rest  on  the  fixed 
platform.  The  rails  of  defendants'  dumps 
constructed  according  to  Exhibit  A  rest  upon 
a  cross-timber  fastened  under  the  stationary 
platform;  while  the  dump  constructed  ac- 
cording to  Exhibit  B  shows  the  forward  ends 
of  the  rails  tied  together,  so  that  tlie  cross- 
board  rests  on  the  stationary  platform.  It 
seems  to  me,  therefore,  that  the  dumps  of 
the  defendant  infringe  this  first  claim;  that 
is,  thej'  use  the  fixed  and  tilting  platform 
acting  together  substantially  as  in  the  reis- 
sue, because  these  two  pivoted  rails  working 
in  their  respective  slots,  when  resting  upon 
their  front  and  rear  bearings,  fo'rm  a  plat- 
form, and  when  a  wagon  is  driven  upon  them 
it  stands  practically  upon  a  platform  com- 
posed of  these  two  rails  and  the  bearing  up- 
on which  they  rest.  Wlien  the  keys  or  locks 
of  the  rear  ends  of  these  rails  are  removed, 
then  the  platform  can  be  tilted,  and  thereby 
the  wagon  put  at  such  an  angle  as  to  dis- 
charge its  load.  The  tie-bar  shown  in  the 
defendants'  dump,  B.  and  in  the  drawing,  is 
really  inoperative  and  performs  no  function, 
if  some  other  rest  for  the  forward  ends  of 
the  bar  is  provided,  because  these  bars  work- 
ing in  their  sh)t  are  all  that  are  needed  to 
hold  the  four  wheels  of  the  wagon,  and  are 
practically  a  platform  of  themselves,  without 
regard  to  a  tie-board  or  cross-board  connect- 
ing their  forward  end. 

The  fifth  claim  is  for  the  combination  of 
the  platforms.  A  and  B,  with  the  stop  device 
or  hook,  by  which  the  platform  Is  prevented 
from  tilting  further  than  is  necessary  to  un- 
load the  wagon.  The  defendants  do  not  use 
this  stop  device,  and  therefore  do  not  in- 
fringe this  combination. 

The  sixth  claim  is  for  the  combination  of 
the  platforms,  A  and  B.  with  the  receiving 
bin  or  chute.  As  I  shall  have  .something  to 
say  about  this  claim  in  considering  the  va- 
lidit.v  of  this  reissue.  I  will  only  say.  in  pass- 
ing, that  no  special  form  of  receiving  bin  or 
chute  is  shown  or  described  in  the  specifica- 
tions. The  very  idea  of  dumping  or  unload- 
ing the  contents  of  a  wagon  or  car  presup- 
poses that  the  contents  are  to  be  dumped 


96 


PATE^'TS. 


into  some  receptacle;  and  it  may  well  be 
doubted  whether  this  claim  is  not  too  vague 
and  uncertain  to  be  upheld. 

The  seventh  claim  is  for  the  combination  of 
the  platforms  A  and  B,  with  the  hopper  lid, 
D.  This  lid,  D,  as  has  been  said,  is  arranged 
to  act  as  a  guide  to  run  the  wagon  wheels 
upon  the  rails,  and,  as  defendants  use  no 
such  device,  but  have  dropped  their  vibrat- 
ing rails  a  slight  distance  below  the  surface 
of  the  fixed  platform,  so  as  to  make  sure  of 
running  the  wheels  upon  the  vibrating  rails, 
they  do  not  infringe  this  combination,  their 
wheel  guide  being  different  from  that  pro- 
vided in  the  patent.  I  therefore  conclude 
that  the  defendants'  dumps  infringe  the  first 
claim  of  this  reissued  patent. 

I  now  come  to  consider  the  validity  of  this 
reissue.  It  will  be  noticed  that  this  reissue 
was  applied  for  and  made  more  than  two 
years  after  the  issue  of  the  original  patent, 
and  the  defendants  insist  that  this  case  is 
by  that  fact  brought  within  the  cases  of 
James  v.  Campbelli  and  Miller  v.  Bridgeport 
Brass  Co.  2  Complainants  insist,  however 
that  the  claims  of  the  reissue  are  but  a  re- 
statement of  the  claims  of  the  original  pat- 
ent. A  comparison  of  the  original  with  the 
reissued  patent  shows  that  the  specifications 
have  been  much  amplified,  and.  to  some  ex- 
tent, new  elements  are  introduced  into  them. 
For  instance,  in  the  original  patent  it  is  said: 
"A  plank  or  board,  C.  is  secured  to  the  front 
end  of  such  bars,  so  that  they  canuot  work 
independently  or  separate  from  each  other, 
but  must  raise  and  lower  at  the  same  time." 
In  the  reissue  it  is  said:  "A  tilting  platform. 
B.  so  constructed  as  that  its  forward  end 
shall  rest  upon  the  stationary  platform,  while 
the  rear  end.  consisting  of  beams  or  bars.  B, 
shall  play  within  the  openings  or  slots  form- 
ed in  the  floor,  so  that,  when  required,  the 
rear  end  of  the  platform  may  descend  below 
the  line  of  the  floor."  Here  we  have,  as  it 
seems  to  me.  a  radical  departure  from  the 
mode  of  construction  indicated  by  the  origi- 
nal patent.  The  original  patent  required 
imperatively  that  the  forward  ends  of  these 
tilting  bars  should  be  fastened  together  so 
that  they  could  not  work  independently  or 
separate  from  each  other,  but  must  raise 
or  lower  at  the  same  time.  By  omitting 
this  element  from  the  reissue,  the  paten- 
tees have  caused  their  device  to  cover  a 
device  which  would  not  be  covered  by  their 
original  patent.  Neither  the  claims  of  the 
original  patent,  nor  the  specifications,  seem 
to  anticipate  any  other  form  of  construc- 
tion than  one  in  which  the  vibrating  bars 
should  be  fastened  together  at  their  for- 
ward ends,  so  that  they  could  not  operate 

1  Fed.  Cas.  No.  2.361. 

2  Fed.  Cas.  No.  9,563. 


independently  or  separate  from  each  other^ 
By  the  reissue  all  that  seems  to  be  required 
is  that  some  rest  or  stop  shall  be  provided 
to  prevent  the  forward  ends  of  the  vibrating 
rails  from  falling  below  the  level  of  the  fixed 
platform,  and,  as  I  have  already  said,  the 
defendants  so  construct  their  dump  that  thfr 
forward  ends  of  the  vibrating  rails  rest  upon 
a  timber  fastened  to  the  under  side  of  the 
fixed  platform.  Here  is  a  new  invention  or 
different  invention  described  and  claimed 
from  that  described  and  claimed  in  the  origi- 
nal patent.  The  original  patent  claimed  a 
vibrating  platform  of  a  peculiar  construc- 
tion, with  ceitaiu  elements  in  it.  The  re- 
issue claims  a  different  vibrating  platform, 
■with  less  elements  in  it,  and  describes  a 
vibrating  platform  not  covered  by  the  origi- 
nal specifications  or  claims. 

As.  in  considering  the  question  of  infringe- 
ment, I  have  held  that  the  defendants  only 
infringe  the  first  claim  of  the  reissue,  it  may 
not  be  necessary  to  consider  the  validity  of 
the  fifth,  sixth,  and  seventh  claims  of  this 
reissue;  but  I  can  hardly  forbear  the  passing 
remark  that  the  sixth  claim  of  the  reissue, 
which  is  for  the  combination  of  the  two 
platforms  with  the  receiving  bin  or  chute, 
seems  to  me  to  be  a  most  unwrarautable  en- 
largement and  expansion  of  the  original  pat- 
ent. The  original  patent  contained  no  sug- 
gestion or  description  of  a  receiving  bin  or 
chute.  The  only  possible  allusion  to  it  is  the 
mention  of  the  lid  to  the  hopper;  and  yet, 
by  the  sixth  claim  of  this  reissue,  an  ele- 
ment which  is  not  in  the  original  patent,  ei- 
ther by  description  or  claim,  is  made  one  of 
the  elements  of  a  combination.  It  thereforo 
seems  to  me  that  this  reissued  patent  must 
be  held  void,  as  being  for  an  invention  not 
described  in  or  covered  by  the  original  pat- 
ent. This  patentee  could  not.  by  this  reis- 
sue, add  new  features  or  omit  old  features, 
especially  after  the  lapse  of  so  much  time 
from  the  issue  of  the  original  patent. 

The  proof  in  the  case  shows  quite  conclu- 
sively that,  at  or  about  the  time  of  the  issue 
of  this  original  patent,  this  kind  of  dumps 
or  devices  for  unloading  wagons  came  into 
use,  especially  at  elevators  and  corn-shelling 
warehouses  at  railroad  stations,  and  it  was 
found  by  practical  experience  that  two  pivot- 
ed rails  so  arranged  that  the  wagon  could 
be  driven  upon  them,  with  proper  stops  to 
hold  them  in  place,  and  a  device  for  the  re- 
leasing of  the  stop  when  ready  to  dump,  was 
all  that  was  necessary  for  the  purpose,  and 
Sypes,  McGrath.  and  other  inventors  entered 
the  field  with  this  simpler  form  of  dump, 
whereupon  plaintiff  sought  and  obtained  this 
reissue  in  order  to  cover  this  less  compli- 
cated construction  which  others  had  intro- 
duced and  proved  useful. 

This  bill  is  dismissed  for  want  of  equity. 


COPYRIGHTS. 


97 


BARTLETTE  v.   CRITTENDEN  et  al. 

(Fed.  Cas.  No.  1,082,  4  McLean,  300.) 

Circuit  Court,   D.   Ohio.    July  Term,   1847. 

[In  equity.  Bill  by  R.  M.  Bartlette  to  re- 
strain A.  F.  Crittenden  and  others  from  in- 
fringement of  copyright.  Injunction  grant- 
ed.] 

Mr.  Walker,  for  complainant.  Storer  & 
Gwynn,  for  defendants. 

OPINION  OF  THE  COURT.  This  is  an 
application  to  enjoin  the  defendants  from 
printing,  publishing,  or  selling  a  work  de- 
nominated "An  inductive  and  practical  sys- 
tem of  double-entry  book-keeping,  on  an  en- 
tirely new  plan,"  on  the  ground  that  a  mate- 
rial part  of  the  manuscript,  and  the  arrange- 
ment, were  tlie  work  of  the  complainant,  and 
were  pirated  from  him  by  the  defendants. 
It  appears  that  the  complainant  for  twelve 
years  has  been  engaged  in  teaching  the  art 
of  book-keeping,  in  the  city  of  Cincinnati  and 
other  places.  That  he  had  reduced  to  writ- 
ing the  system  he  taught,  on  separate  cards 
for  the  convenience  of  imparting  instruction 
to  his  pupils;  and  that  he  permitted  his  stu- 
dents to  copy  these  cards,  with  the  view  to 
their  own  advantage  an*  to  enable  them  to 
instruct  others.  That  .Jonathan  Jones,  being 
qualified  in  the  school  of  the  complainant,  as 
a  teacher,  and  having  copied  the  manuscripts 
of  the  complainant,  engaged,  in  connection 
with  him.  to  teach  a  commercial  school  in  St. 
Louis.  While  thus  engaged,  A.  F.  Critten- 
den, one  of  the  defendants,  entered  the  school 
at  St.  Louis  as  a  student,  and  was  permitted 
to  copy  the  manuscripts  of  the  complainant, 
in  the  possession  of  Jones;  and  from  those 
manuscripts,  with  certain  alterations,  he 
made  up  the  first  ninety-two  pages  of  the 
book,  under  the  above  title,  which  was  pub- 
lished in  Philadelphia,  in  connection  with  his 
brother,  by  E.  C.  &  J.  Biddle,  two  of  the  de- 
fendants, in  the  present  year.  The  answers 
of  the  defendants  either  deny  the  allegations 
of  the  bill,  or  do  not  admit  thom,  and  call  for 
proof  of  the  facts  stated.  On  this  motion 
for  an  injunction  the  merits  of  the  case  have 
been  discussed,  with  much  research  and  abil- 
ity. 

This  application  is  made  under  the  9th  sec- 
tion of  the  act  of  congress  of  the  3d  of  Feb- 
ruary, 1831,  [4  Stat.  438,]  which  provides, 
that  "any  person  or  persons  who  shall  print 
or  publish  any  manuscript  whatever,  without 
the  consent  of  the  author  or  legal  proprietor 
first  obtained,  etc.,  shall  be  liable  to  suffer 
and  paj'  to  the  author  or  proprietor,  all  dam- 
ages occasioned  by  such  injury,"  etc.  And 
power  is  given  to  grant  an  injunction  to  re- 
strain the  publication.  The  first  section  of 
the  act  of  the  30th  of  June,  1834,  [4  Stat.  p. 
728,  c.  157,]  requires  all  deeds  or  instruments 
in  writing  for  the  transfer  or  assignment  of 
copy-rights,  to  be  acknowledged  and  record- 
ed. At  common  law,  independently  of  the 
statute,  I  have  no  doubt,  the  author  of  a 

VAX  ZILE.SEL.CAS.PERS. — 7 


manuscript  might  obtain  redress  against  one 
who  had  sm-reptitiously  got  possession  of  it. 
And  on  general  equitable  principles,  I  see  no 
objection  to  reUef  being  also  given,  under  like 
circumstances,  by  a  court  of  chancery.  But 
this  is  a  proceeding  under  the  statute. 

The  defendants  contend  that  the  complain- 
ant, by  suffering  copies  of  his  manuscripts  to 
be  taken,  abandoned  them  to  the  public.  The 
principle  is  the  same,  it  is  alleged,  in  regard 
to  copy-rights  and  patents.  And  that  a  con- 
sent or  permission  of  the  author  to  use  the 
manuscripts,  is  as  fatal  to  his  exclusive  right, 
as  the  consent  of  the  inventor  to  use  the 
thing  invented.  Rundell  v.  Murray,  [Saund- 
ers V.  Smith,]  3  Mylne  &  C.  711,  728,  730,  735; 
Millar  v.  Taylor.  4  Burrows,  18G.  [2303:]  Bar- 
field  V.  Nicholson,  2  Sim.  &  S.  1.  To  show 
the  analogy  between  copy-right  and  patents, 
the  defendants  cited  Whittemore  v.  Cutter, 
[Case  No.  17,601;]  Melius  v.  Sillsbee,  [Id.  9,- 
404,]  in  which  the  question  considered  was, 
did  the  inventor  suffer  the  thing  patented  to 
go  into  pul>lic  use  without  objection?  Wal- 
cot  V.  Walker,  7  Ves.  1;  Piatt  v.  Button.  19 
Ves.  448;  Wyeth  v.  Stone,  1  Story,  273,  Fed. 
Cas.  No.  18,107. 

The  7th  section  of  the  act  of  the  3d  of 
March,  1839,  [5  Stat.  3.54,]  declari«  that  a 
purchaser  from  the  inventor  of  the  thing 
invented,  before  a  patent  is  obtained,  shall 
continue  to  enjoy  the  same  right  after  the 
obtainment  of  the  patent  as  before  it;  and 
that  such  sale  shall  not  invalidate  the  pat- 
ent, unless  there  has  been  an  abandonment, 
or  the  purchase  has  been  made  more  than 
two  years  before  the  application  for  the  pat- 
ent Before  this  act,  a  sale  of  the  right 
would  have  been  an  abandonment  to  the 
public  by  the  inventor.  The  decisions,  there- 
fore, referred  to,  do  not  apply  to  cases  aris- 
ing under  this  statute.  A  sale  of  the  right 
is  not  an  abandonment,  if  made  within  two 
years  before  the  application  for  a  patent,  as 
the  law  now  stands;  and  it  may  be  a  mat- 
ter of  some  ditficulty,  within  tlie  above  lim- 
itation of  two  years,  to  determine  what  act 
shall  amount  to  an  abandonment.  Where 
the  act  is  accompanied  by  a  declaration,  to 
that  effect,  there  can  be  no  doubt;  but  if  a 
sale  be  not  an  abandonment,  a  mere  acquies- 
cence in  the  use  of  the  invention  would 
seem  not  to  be.  Within  the  two  yeai-s,  to 
constitute  an  abandonment,  the  intention  to 
do  so  must  be  expressed  or  necessarily  im- 
plied from  the  facts  and  circumstances  of 
the  case.  It  is  a  question  of  intention,  as 
to  the  extent  of  the  license,  of  which  we 
must  judge,  as  we  are  called  to  do  in  other 
cases.  But  the  limitation  of  two  years  does 
not  apply  in  this  case,  should  a  copy-right 
be  considered  in  principle  identical  with  an 
invention  of  a  machine,  as  more  than  two 
years  have  elapsed  since  copies  of  the  com- 
plainant's manuscripts  were  taken  with  his 
consent. 

The  question  arises  upon  the  facts  statea, 
and  must  be  decided  on  general  principles. 
In  the  first  place,  there  was  no  consent  of 


98 


COPYKIGIITS. 


the  complainant,  that  his  manuscripts  should 
be  printed.  That  they  were  not  p.-vpared 
for  the  press  is  admitted.  They  wer*  with- 
out index  or  preface,  although,  as  alleged, 
they  may  have  contained  the  substantial 
parts  of  the  complainant's  system,  which, 
in  due  time,  he  intended  to  print.  Copies 
of  the  manuscripts  were  taken  for  the  bene- 
fit of  his  pupils,  and  to  enable  them  to  teach 
others.  This,  from  the  facts  and  circum- 
stances of  the  case,  seems  to  have  been  the 
extent  of  the  complainant's  consent.  It  is 
contended  that  this  is  an  abandonment  to 
the  public,  and  is  as  much  a  publication  as 
printing  the  manuscripts.  That  printing  is 
only  one  mode  of  publication,  which  may  be 
done  as  well  bj'  multiplying  manuscript 
copies.  This  is  not  denied,  but  the  inquiry 
is,  does  such  a  publication  constitute  an 
abandonment?  The  complainant  is  no  doubt 
bound  by  this  consent,  and  no  court  can  af- 
ford him  any  aid  in  modifying  or  withdraw- 
ing it.  The  students  of  Bartlette,  who  made 
these  copies,  have  a  right  to  them  and  to 
their  use  as  originally  intended.  But  they 
have  no  right  to  a  use  which  was  not  in 
the  contemplation  of  the  complainant  and  of 
themselves,  when  the  consent  was  fii'st 
given.  Nor  can  they,  by  suffering  others 
to  copy  the  manuscripts,  give  a  greater  li- 
cense than  was  vested  in  themselves.  In 
England,  if  an  invention  be  pirated  and 
given  to  the  public,  it  prevents  an  inventor 
from  obtaining  a  patent.  But  this  is  not 
the  construction  of  om-  laws.  If  an  invent- 
or of  a  machine  sell  it  or  acquiesce  in  its 
public  use,  not  within  the  limitation  of  the 
two  years,  he  forfeits  his  rights.  He  must 
be  diligent  in  making  known  and  asserting 
his  right,  where  it  has  sm-reptitiously  got 
into  the  possession  of  another,  or  he  aban- 
dons it.  This  was  the  settled  rule  before 
the  act  of  1839,  and  it  would  seem  that  cases 
which  do  not  come  within  the  provisions  of 
that  act.  must  be  governed  by  the  old  rule, 
No  length  of  time,  where  the  invention  does 
not  go  into  public  use,  can  invalidate  the 
right  of  the  inventor.  He  may  take  his 
own  time  to  perfect  his  discovery,  and  apply 
for  a  patent.  And  the  same  principle  ap- 
plies to  the  manuscripts  of  an  author.  If 
he  permit  copies  to  be  taken  for  the  gratifi- 
cation of  his  friends,  he  does  not  authorize 
those  friends  to  print  them  for  general  use. 
This  is  the  author's  right,  from  which  arises 
the  high  motive  of  pecuniary  profit  and  liter- 
ary repiitation.  When  the  inventor  consents 
to  the  construction  and  use  of  his  machine, 
he  yields  the  whole  value  of  his  invention. 
But  an  author's  manuscripts  are  very  dif- 
ferent from  a  machine.  As  manuscripts,  in 
modern  times,  they  are  not  and  can  not  be 


of  general  use.  Popular  lectures  may  be 
taken  down  verbatim,  and  the  person  taking 
them  down  has  a  right  to  their  use.  He 
may  in  this  way  perpetuate  the  instruction 
he  receives,  but  he  may  not  print  them. 
The  lectvu'er  designed  to  instruct  his  hearers, 
and  not  the  public  at  large.  Any  use,  there- 
fore, of  the  lec-tures,  which  should  operate 
injuriously  to  the  lecturer,  would  be  a  fraud 
upon  him  for  which  the  law  would  give  him 
redress.  He  can  not  claim  a  vested  right 
in  the  ideas  he  communicates,  but  the  words 
aud  sentences  in  which  they  are  clothed  be- 
long to  him. 

It  is  contended  that  the  manuscripts  are 
incomplete,  and  if  published  in  their  present 
state,  could  not  be  protected  by  a  copy-right. 
That  an  unfinished  manuscript  or  book, 
which  gives  only  a  part  of  the  thing  intend- 
ed to  be  written  or  published,  can  be  of  no 
value,  and  if  printed  no  relief  could  be 
given,  as  no  damage  would  be  done.  That 
the  parts  of  a  machine,  in  the  process  of 
consti'uction,  if  pirated,  would  give  no  right 
to  an  injunction  by  the  inventor.  If  the 
manuscript  or  machine  referred  to  consisted 
of  a  mere  fragment,  which  embodied  no 
principle  and  pointed  to  no  design,  the  pi- 
racy of  it  would  afford  no  ground  of  relief. 
But  such  is  not  tUe  character  of  complain- 
ant's manuscripts.  They  may  not  be  com- 
plete for  public:!  tion.  Some  explanatory 
notes  may  be  wanting,  to  assist  the  reader 
in  comprehending  the  system.  This  in- 
formation was  communicated  by  lectures, 
and  for  the  piu-poses  of  instruction  in  that 
mode,  the  notes  were  imnecessary.  But  the 
cards  contain  the  frame  work  of  the  system. 
The  substratum  is  there,  and  so  exemplified 
as  to  show  the  principle  upon  which  it  is 
constriicted.  That  it  was  valuable,  is  shown, 
from  the  fact  of  the  cards  having  been  used 
by  the  defendants  in  teaching  the  system, 
and  in  publishing  them  as  they  have  done. 

The  facts  show  the  piracy  beyond  all 
doubt,  and  that  it  was  done  under  cu-cum- 
stances  Avhich  admit  of  little  or  no  mitiga- 
tion. The  cards,  as  they  well  knew,  had 
been,  for  a  number  of  years,  and  were  then 
being  used  by  the  complainant  to  instruct 
pupils.  They  had  learned  all  they  knew  on 
the  subject  from  the  complainant.  They 
probably  knew  that  he  intended  to  publish 
his  plan.  But  this  would,  to  some  extent, 
at  least,  superseile  the  necessity  of  personal 
instruction.  In  disregard  of  these  considera- 
tions, and  of  the  obligations  the  defendants 
owed  to  the  complainant,  the  publication  was 
made. 

The  coiu"t  will  allow  an  injunction  unless 
a  satisfactory  arrangement  shall  be  made 
between  the  parties. 


I 


TRADEMARKS. 


99 


CELLUr-OID  MANUF'G  CO.  v.  CELLO- 
NITE  MANUF'G  CO. 

(32  Fed.   94.) 

Circuit  Court,  D.  New  Jersey.    July  12,  1887. 

Motion  for  preliminary  injimction. 

Rowland    Cox,    for   the  motion.     John   R. 
Bennett,  contra. 

BRADLEY,  J.  The  bill  of  complaint  in 
this  case  states  that  the  complainant  was 
incorporated  under  the  laws  of  New  York 
in  1871,  and  has  ever  since  that  time  used 
its  corporate  name  in  carrying  on  its  busi- 
ness of  the  manufacture  and  sale  of  various 
compounds  of  pyroxyline,  adapted  to  dif- 
ferent uses  and  purposes,  and  that  its  name 
has  become  of  great  consequence  in  the  good- 
will of  its  business,  its  standing,  and  the 
reputation  of  its  goods;  that,  in  order  to 
designate  its  said  manufactured  product,  and 
to  distinguish  it  from  similar  comix)unds 
manufactured  by  others,  the  complainant, 
from  the  first,  adopted  and  used  the  word 
"celluloid,"  which  had  never  been  used  be- 
fore, except  to  a  limited  extent  by  Isaiah 
S.  and  John  W.  Hyatt,  by  whom  the  word 
was  coined,  and  who  were  engaged  in  the 
same  manufacture  at  Albany.  New  York,  and 
used  the  word  as  a  trade-mark;  and  when 
complainant  was  incorporated  the  said  Hy- 
atts  entered  into  its  employ,  and  assigned  to 
it  all  their  rights  relating  to  the  business, 
good-will,  and  trade-mark;  and  complain- 
ant has  ever  since  used  the  word  "celluloid" 
as  its  trade-mark,  by  impressing  or  stamp- 
ing it  into  the  surface  of  the  articles  made 
from  the  manufactured  product,  whereby  it 
has  acquired  a  high  reputation  as  denoting 
complainant's  manufacture,  and  indicating 
goods  of  superior  quality,  as  compared  with 
like  goods  sold  by  other  parties  under  the 
names  of  chrolithion,  lignoid,  pasbosene,  etc.; 
that  in  1873  complainant  caused  said  Avord 
"celluloid"  to  be  registered  as  a  trade-mark 
in  the  United  States  patent-office,  under  the 
act  in  such  case  made  and  provided,  and 
again  registered  in  1883,  under  the  subse- 
quent act.  The  bill  then  complains  that  the 
defendant,  in  order  to  deprive  the  complain- 
ant of  its  business  and  its  rights,  and  to  cre- 
ate an  unfair  competition,  since  the  first  day 
of  .Tanuary,  188G,  has  adopted  the  name  of 
Cellonite  Manufacturing  Company,  with  in- 
tent that  it  should  be  mistaken  for  com- 
plainant's name,  and  intends  to  use  it  in 
the  transaction  of  business  similar  to  that  of 
the  complainant;  that  the  similarity  of  names 
will  embarrass  and  obstruct  the  business  of 
the  complainants,  cause  confusion  and  mis- 
take, divert  complainant's  custom,  reduce 
its  sales,  and  deceive  the  public;  that  the 
defendant  has  commenced  to  erect  works  on 
an  extensive  scale  for  the  manufacture  of  a 
compound  of  pyroxyline.  to  be  put  on  sale 
under  the  name  of  "cellonite,"  a  name  purely 


arbitrary,  and  adopted  to  enable  the  defend- 
ant to  sell  the  article  as  complainant's  prod- 
uce; that  the  corporators  who  formed  the 
defendant  company  had  previously  been  en- 
gaged in  the  manufacture  of  pyroxyline  com- 
pounds under  the  name  of  "pasbosene."  "lig- 
noid," "chrolithion,"  etc.,  but  selected  the 
new  name,  "cellonite."  in  order  to  trade  upon 
the  complainant's  reputation,  and  to  sell  its 
product  as  the  complainant's,  and  intends  to 
stamp  its  goods  with  the  word  "cellonite." 
in  imitation  of  the  stamp  on  complainant's 
goods,  in  order  to  sell  them  as  complainant's 
manufacture.  The  bill  prays  an  injunction 
to  prevent  the  defendant  from  using  the  word 
"cellonite,"  or  any  imitation  of  the  word 
"celluloid."  The  allegations  of  the  bill  are 
verified  by  affidavits  and  exhibits. 

The  defendant  has  filed  an  answer,  in  which 
it  denies  that  the  conu)lainant  has  any  right 
to  the  exclusive  use  of  the  word  "celluloid:" 
alleges  that  many  companies  use  it  in  u»eir 
names,  as  "Celluloid  Brush  Company,"  "  cel- 
luloid Collar  &  Cuff  Company,"  etc..  which 
have  been  allowed  by  complainant  without 
objection.  It  admits  the  selection  and  use  of 
the  word  by  the  complainant,  but  denies  any 
exclusive  right  to  the  use  of  it.  because  it  has 
become  a  part  of  the  English  language  to 
designate  the  substance  celluloid,  and  the 
impression  of  the  word  on  the  articles  manu- 
factured by  complainant  merely  indicati's  the 
substance  of  which  they  are  composed.  It 
denies  that  the  word  "cellonite"  Avas  adopted 
for  the  purpose  of  imitating  the  name  of 
complainant,  or  the  name  stamped  on  the 
complainant's  goods.  It  avers  that  the  word 
Avas  adopted  as  far  back  as  1S83.  and  has 
been  continuously  used  ever  since,  not  to 
imitate  the  word  "celluloid."  but  selected  as 
better  describing  the  exact  nature  of  the 
pyroxyline  compound  used  by  the  defendant; 
the  same  being  a  compound  of  the  well- 
known  substances  cellulose  and  nitre,  "cel- 
lonite" being  merely  a  compound  derivative 
of  those  two  Avords;  that  the  defendant  aban- 
doned the  use  of  the  words  "pasbosene,"  "lig- 
noid." etc..  because  those  Avords  gave  no  in- 
formation as  to  the  chemical  constituents  of 
the  compounds  designated  by  them.  It  al- 
leges that  it  has  for  four  years  been  engaged 
in  manufacturing  and  selling  goods  marked 
"Cellonite,"  and  until  uoav  no  attempt  has 
been  made  to  interfere  Avith  it.  To  shoAv  that 
the  Avord  "celluloid"  is  a  Avord  of  common 
use,  the  ansAver  cites  various  patents  and 
books,  (but  all  subse<]uent  to  1873.)  also  the 
rules  of  the  patent-office  as  to  the  classes  of 
inventions,  in  which  one  of  the  sub-classes 
is  "Celluloid." 

The  only  verification  of  the  ansAver  is  the 
oath  of  J.  R.  Frifnce,  an  officer  of  the  com- 
pany, who  SAvears  that  the  contents  are  ti-ue. 
so  far  as  they  are  Avithin  his  knowledge;  and. 
so  far  as  stated  on  information  and  belief, 
he  believes  them  to  be  true. 

The  ansAver  virtually  admits  that  the  cor- 


100 


TRADEMARKS. 


porators  of  the  defendant  had  been  engaged, 
before  the  formation  of  the  defendant  com- 
pany, in  the  same  manufacture,  and  had  call- 
ed their  produce,  '"pasbosene."'  '"lignoid,"  etc.; 
and  that  they  adopted  the  word  "cellonite." 
instead  of  those  designated,  for  the  reason, 
as  the  answer  says,  that  it  is  more  expressive 
of  the  constituents,  cellulose  and  nitre.  This 
is  a  somewhat  singular  explanation.  The  ter- 
mination "ite,"'  in  chemistry,  has  a  technical 
apiilication  nothing  to  do  with  the  word 
'•nitre;"  and.  notwithstanding  the  denial  of 
the  answer,  (which,  however,  cannot  be  re- 
garded as  verified  by  oath,)  the  inference 
strongly  presses  itself  that  the  name  was 
adopted  on  account  of  its  similarity  to  "cel- 
luloid." as  the  complainant  charges. 

In  alleging  that  the  word  ''cellonite '  has 
been  used  by  the  defendant  since  1SS3.  the  ae- 
fendant.  which  was  not  incorporated  until 
May,  18SG,  identifies  itself  with  the  previous 
association,  shown  by  the  affidavits  to  have 
been  called  the  "Merchants'  Manufacturing 
Company,"  composed  of  the  same  corpora- 
tors, who  abandoned  the  old  name,  and  as- 
sumed the  new  one.  for  some  purpose  or 
other.  The  explanation  given  for  so  doing  is 
not  entirely  satisfactory.  Here  are  two  lacts 
standing  side  by  side:  First,  the  fact  that  the 
Celluloid  ^Manufacturing  Company,— an  old, 
well-established  concern,— is  doing  a  large 
and  prosperous  business,  with  a  good-will 
resulting  from  many  years  of  successful  ef- 
fort, and  calls  the  product  of  its  manufacture 
"celluloid."  which  has  become  such  a  popu- 
lar designation  that,  as  the  defendant  says,  it 
has  become  incorporated  in  the  English  lan- 
guage; secondly,  the  fact  that  the  Merchants* 
Manufacturing  Company,  which  produces 
substantially  the  same  article,  and  calls  it  by 
different  names,  "pasbosene."  "lignoid,"  etc., 
(with  what  success  we  are  not  told.)  sudden- 
ly changes  its  name  to  that  of  Cellonite  Man- 
ufacturing Company,  and  calls  its  produce 
"cellonite."  It  will  take  a  great  deal  of  ex- 
planation to  convince  any  man  of  ordinary 
business  experience  that  this  change  of  name 
was  not  adopted  for  the  purpose  of  imitating 
that  of  the  old.  successful  company. 

It  is  the  object  of  the  law  relating  to  trade- 
marks to  prevent  one  man  from  unfairly 
stealing  away  another's  business  and  good- 
will. Fair  competition  in  business  is  legiti- 
mate, and  promotes  the  public  good;  but 
an  unfair  appropriation  of  another's  business, 
by  using  his  name  or  trade-mark,  or  an  imi- 
tation thereof  calculated  to  deceive  the  pub- 
lic, or  in  any  other  way,  is  justly  punishable 
by  damages,  and  will  be  enjoined  by  a  cor.rt 
of  equity.  The  question  before  me  is  wheth- 
er the  law  has  been  violated  in  the  present 
case. 

First.  As  to  the  imitation  of  the  complain- 
ant's name.  The  fact  that  both  are  corpo- 
rate names  is  of  no  consequence  in  this  con- 
nection. They  are  the  business  names  by 
which  the  parties  are  known,  and  are  to  be 


dealt  with  precisely  as  if  they  were  the  names 
of  j)rivate  firms  or  partnerships.  The  de- 
fendant's name  was  of  its  own  choosing,  and, 
if  an  unlawful  imitation  of  the  complain- 
ant's, is  subject  to  the  same  rules  of  law  as 
if  it  were  the  name  of  an  unincorporated 
firm  or  company.  It  is  not  identical  with  the 
complainant's  name.  That  would  be  too 
gross  an  invasion  of  the  complainant's  right. 
Similarity,  not  identity,  is  the  usual  recourse 
when  one  party  seeks  to  benefit  himself  by 
the  good  name  of  another.  "What  simiiancy 
is  sufficient  to  effect  the  object  has  to  be 
determined  in  each  case  by  its  own  circum- 
stances. We  may  say,  generally,  that  a  sim- 
ilarity which  would  be  likely  to  deceive  or 
mislead  an  ordinary  unsuspecting  customer  is 
obnoxious  to  the  law.  Judged  by  this  stand- 
ard, it  seems  to  me  that,  considering  the  na- 
ture and  circumstances  of  this  case,  the  name 
"Cellonite  Manufacturing  Company"  is  suffi- 
ciently similar  to  that  of  the  "Celluloid  Manu- 
facturing Company"  to  amount  to  an  In- 
fringement of  the  complainant's  trade  name. 
The  distinguishing  words  in  both  names  are 
rather  unusual  ones,  but  supposed  to  have 
the  same  sense.  Their  general  similarity, 
added  to  the  identity  of  the  other  parts  of 
the  names,  makes  a  whole  which  is  calculat- 
ed to  mislead. 

Secondly.  As  to  the  complainant's  alleged 
right  to  the  exclusive  use  of  the  word  "cel- 
luloid"' as  a  trade-mark,  and  the  defendant's 
alleged  imitation  thereof.  On  this  branch 
of  the  case,  the  defendant  strenuously  con- 
tends that  the  word  "celluloid"  is  a  word 
of  common  use  as  an  appellative,  to  desig- 
nate the  substance  celluloid,  and  cannot,^ 
therefore,  be  a  trade-mark;  and.  secondly, 
if  it  is  a  trade-mark  the  defendant  does  not 
infringe  it  by  the  tise  of  the  word  "cellonite." 

As  to  the  first  point,  it  is  undoubtedly  true, 
as  a  general  rule,  that  a  word  merely  de- 
scriptive of  the  article  to  which  it  is  ap- 
plied cannot  be  used  as  a  trade-mark. 
Evei-ybody  has  a  right  to  use  the  common 
appellatives  of  the  language,  and  to  ap- 
ply them  to  the  things  denoted  by  them. 
A  dealer  in  flour  cannot  adopt  the  word 
"flotir"  as  his  trade-mark,  and  prevent  oth- 
ers from  applying  it  to  their  packages  of 
flour.  I  am  satisfied  from  the  evidence  ad- 
duced before  me  that  the  word  "celluloid" 
has  become  the  most  commonly  used  name^ 
of  the  substance  which  both  parties  manu- 
facture, and,  if  the  rule  referred  to  were  of 
universal  application,  the  position  of  the  de- 
fendant would  be  unassailable.  But  the  spe- 
cial case  before  me  is  this:  The  complain 
ant's  assignors,  the  Hyatts.  coined  and 
adopted  the  word  when  it  was  unknown,  and 
made  it  their  trade-mark,  and  the  complain- 
ant is  assignee  of  all  the  rights  of  the  Hy- 
atts. When  the  word  was  coined  and  adopt- 
ed, it  was  clearly  a  good  trade-mark.  The 
question  is  whether  the  subsequent  use  of  it 
by  the  public,  as  a  common  aiipellative  of 


TRADEMARKS. 


101 


tlie  substance  manufactured,  can  take  away 
the  complainant's  right.  It  seems  to  me 
that  it  cannot. 

As  a  common  appellative,  the  public  has  a 
right  to  use  the  word  for  all  purposes  of 
designating  the  article  or  product,  except 
one,— it  cannot  use  it  as  a  trade-mark,  or  in 
the  way  that  a  trade-mark  is  used,  by  apply- 
ing it  to  and  stamping  it  upon  the  articles. 
The  complainant  alone  can  do  this,  and  any 
other  person  doing  it  will  infringe  the  com- 
plainant's right.  Perhaps  the  defendant 
Avould  have  a  right  to  advertise  that  it  man- 
ufactures celluloid.  But  this  use  of  the 
word  is  very  different  from  using  it  as  a 
trade-mark  stamped  upon  its  goods.  It  is 
the  latter  use  which  the  complainant  claims 
to  have  an  exclusive  right  in;  and.  if  it  has 
such  right,  (which  it  seems  to  me  it  has,) 
then  such  a  use  by  the  defendant  of  the 
word  "celluloid"  itself,  or  of  any  colorable 
imitation  of  it,  would  be  an  invasion  of  the 
complainant's  right.  As  a  trade-mark  it  in- 
dicates that  the  article  bearing  it  is  the 
product  of  the  complainant's  manufacture. 
If  another  party  uses  it  in  that  way,  it  in- 
dicates a  falsehood,  and  is  a  fraud  on  the 
public,  and  an  injury  to  the  complainant. 
The  essence  of  the  law  of  trade-marks  is 
that  one  man  has  no  right  to  palm  off.  as 
the  goods  or  manufacture  of  another,  those 
that  are  not  his.  This  is  done  by  using  that 
other's  trade-mark,  or  adopting  any  other 
means  or  device  to  create  the  impression 
that  goods  exhibited  for  sale  are  the  product 
of  that  other  person's  manufacture  when 
they  are  not  so. 

The  subject  is  well  illustrated  by  the  case 
of  McAndrew  v.  Bassett.  4  De  Gex,  J.  &  S. 
3S0.  The  plaintiffs  produced  a  new  article 
of  liquorice,  and  stamped  the  sticks  with  the 
word  "Anatolia,"  some  of  the  juice  from 
which  they  were  made  being  brought  from 
Anatolia,  in  Turkey.  The  article  becoming 
very  popular,  the  defendants  stamped  their 
liquorice  sticks  with  the  same  word.  Being 
sued  for  violation  of  plaintiffs'  trade-mark, 
one  of  their  defenses  was  that  no  person  has 
a  right  to  adopt  as  a  trade-mark  a  common 
word,  like  the  name  of  a  country  where  the 
article  is  produced.  Lord  Chancellor  West- 
bury  said:  "That  argument  is  merely  the 
repetition  of  the  fallacy  which  I  have  fre- 
quently had  occasion  to  expose.  Property 
in  the  Avord,  for  all  purposes,  cannot  exist; 
but  property  in  that  woi-d.  as  applied  by  way 
of  stamp  ui>on  a  particular  vendible,  as  a 
stick  of  liquorice,  does  exist  the  moment  the 
article  goes  into  the  market  so  stan)pe(l,  and 
there  obtains  acceptance  and  reputation, 
whereby  the  stamp  gets  currency  as  an  in- 
dication of  superior  quality,  or  of  some  other 
circumstance  which  renders  the  article  so 
stamped  acceptable  to  the  public."  Page 
386. 

Another  case  throwing  light  on  the  sub- 
ject is  that  of  Singer  Machine  Mauuf'g  Co. 


V.  Wilson,  3  App.  Cas.  37G.  There  the  de- 
fendant, a  manufacturer  and  vendor  of  sew- 
ing-machines, inserted  in  his  price-list,  among 
other  articles  for  sale,  the  "Singer  Sewing- 
Machine,"  and  sold  machines  by  that  name, 
but  having  his  own  trade-mark  upon  them. 
The  plaintiff  sued  him  on  the  ground  that 
by  a  Singer  sewing-machine  was  understood 
in  the  community  a  sewing-machine  made 
by  Singer,  the  inventor,  or  by  the  plain- 
tiff, his  assignee  and  successor  in  business. 
The  plaintiff  contended,  therefore,  that  the 
advertisement  was  a  fiaud  on  the  public, 
and  an  invasion  of  its  exclusive  right  to 
the  name  "Singer."  Tlie  defendant  contend- 
ed that  the  terras  "Singer  Sewing-Machine'' 
meant  a  particular  kind  of  machine,  (which 
he  described,)  irrespective  of  who  manufac- 
tui-ed  it;  that  the  wo';d  "Singer"  had  come 
to  be  descriptive  in  its  character,  and  would 
not  have  the  effect  attributed  to  it  by  the 
plaintiff.  The  judges  who  delivered  opin- 
ions in  the  case,  held  that  if  the  use  of  the 
name  "Singer"  gave  the  public  to  under- 
stand that  the  defendant  sold  machines 
made  by  the  plaintiff,  it  was  a  wrong  done 
to  the  plaintiff;  but  that  if  the  name  had 
come  into  common  use  as  a  name  of  a  par- 
ticular kind  of  machine,  irrespective  of  the 
maker,  the  defendant  had  a  right  to  use  it 
in  his  advertisements  in  that  sense,  using 
his  own  trade-mark  on  the  article  itself; 
and  it  was  held  by  all  the  judges  that  it 
w'as  a  matter  to  be  determined  by  evidence 
whether  the  use  of  the  name  in  the  adver- 
tisement had  the  one  effect  or  the  other. 

This,  it  will  be  observed,  was  a  case  of 
advertising,  and  not  of  imitating  a  trade- 
mark. Still,  if  it  had  the  same  effect,  it 
was  held  to  be  equally  culpable.  The  case 
does  not  decide  that,  if  the  word  "Singer" 
had  been  the  plaintiff's  trade-mark,  any 
change  in  its  use  would  have  affected  such 
trade-mark,  but  does  decide  that  an  exten- 
sion of  its  use  might  render  the  woi-d  harm- 
less in  an  advertisement. 

The  defendant's  counsel  in  the  present 
case  placed  great  reliance  on  the  decision  in 
Cloth  Co.  V.  Cloth  Co..  11  H.  L.  Cas.  523. 
After  carefully  reading  that  case,  I  do  not 
see  that  it  necessarily  governs  the  present. 
Xo  question  was  made  as  to  the  names  of 
the  companies.  The  trade-mark  there  was  a 
large  circular  labi'l  stamped  upon  the  cloth, 
containing,  within  its  circumference,  tlie 
name  of  the  former  company  which  carried 
on  the  manufacture,  and  the  places  where  it 
had  been  carried  on,  thus:  "Crockett  Inter- 
national Leather  Cloth  Company,  Newark,  N. 
J.,  U.  S.  A.;  West  Ham.  Essex,  England." 
Within  the  circle  were,  first,  the  figure  of  an 
eagle,  displayed,  under  the  word  "Excelsior," 
and  then  certain  announcement's  in  large 
type,  as  follows:  "Crockett  &  Co.  Tanned 
I^eather  Cloth;  patenteil  Jau'y  24,  '58.  J.  K. 
&  C.  P.  Crockett,  Manufacturers."  The  court 
held  this  label  to  be  partly  trade-mark  and 


102 


TRADEMARKS. 


partly  advei-ti??m?nt;  and,  as  the  cloth  was 
not  patented,  and  J.  R.  &  C.  P.  Crockett  were 
not  the  manufacturers,  the  court  was  inclined 
to  aj?ree  with  the  lord  chancellor  that  these 
statements  invalidated  the  label  as  a  trade- 
mark; but  Lords  Cranwoith  and  Kingsdowu 
preferred  to  place  their  decision  against  the 
plaintiff  on  the  ground  that  the  defendants' 
label  did  not  infringe  it.  They  pointed  out 
differences  in  figure,  and  showed  that  the  an- 
nouncements were  different;  and  the  defend- 
ants" announcement  being  "Leather  cloth, 
manufactured  by  their  manager,  late  with  J. 
R.  &  C.  P.  Crockett  &  Co.,"  without  any  ref- 
erence to  a  patent,  Lord  Kingsdown  said: 
"The  leather  cloth,  of  which  the  manufacture 
was  first  invented  or  introduced  into  the 
countty  by  the  Crocketts,  was  not  the  subject 
of  any  patent.  The  defendants  had  the 
right  to  manufacture  the  same  article,  and  to 
represent  it  as  the  same  with  the  article 
manufactured  by  the  Crocketts;  and,  if  the 
article  had  acquired  in  the  market  the  name 
of  Crocketts"  leather  cloth,  not  as  expressing 
the  maker  of  the  particular  specimen,  but  as 
describing  the  nature  of  the  article  by  whom- 
soever made,  they  had  a  right  in  that  sense 
to  manufacture  Crocketts'  leather  cloth,  and 
to  sell  it  by  that  name.  On  the  other  hand, 
they  had  no  right,  directly  or  indirectly,  to 
represent  that  the  article  which  they  sold 
was  manufactured  by  the  Crocketts  or  by 
any  iicrson  to  whom  the  Crocketts  had  as- 
signed their  business  or  their  rights.  They 
had  no  right  to  do  this,  either  by  positive 
statement,  or  by  adopting  the  trade-mark  of 
Crockett  &  Co.,  or  of  the  plaintiffs  to  whom 
the  Crocketts  had  assigned  it,  or  by  using  a 
trade-mark  so  nearly  resembling  that  of  the 
plaintiff  as  to  be  calculated  to  mislead  incau- 
tious purchasers." 

It  seems  to  me  that  the  true  doctrine  could 
not  be  more  happily  expressed  than  is  here 
done  by  Lord  Kingsdown.  There  is  nothing 
in  the  case,  nor  in  the  opinions  of  any  of  the 
judges,  adverse  to  the  claim  of  the  complain- 
ant. 

There  is  a  case  in  the  New  York  Reports 
(Selchow  V.  Baker,  93  X.  Y.  59)  which  comes 
very  near  to  that  now  under  consideration. 
That  was  the  case  of  "sliced  animals,"  and 
other  "sliced"  objects,  being  a  term  used  by 
the  plaintiff  as  a  trade-mark  to  designate  cer- 
tain puzzles  manufactured  and  sold  by  them, 
in  which  pictures  of  animals,  etc.,  on  card- 
board, were  sliced  up  in  pieces,  and  the  puz- 
zle was  to  put  the  pieces  together  and  make 
the  animal.  The  label  "Sliced  Animals." 
etc..  was  used  by  the  plaintiffs  on  all  boxes 
of  these  goods  sold  by  them.  The  defend- 
ants infringed,  and  the  question  was  wheth- 
er this  kind  of  designation  could  avail  as  a 
trade-mark.  Judge  Rapallo,  in  delivering  the 
opinion  of  the  court,  after  reviewing  many 
cases  on  the  subject,  concludes  as  follows: 
"Om*  conclusion  is  that  where  a  manufac- 
turer has  invented  a  new  name,  consisting 


either  of  a  new  word  or  a  word  or  words  in 
common  use,  which  he  has  applied  for  the 
fu'st  time  to  his  own  manufacture,  or  to  an 
article  manufactm-ed  by  him,  to  distinguish 
it  from  those  manufactured  and  sold  by  oth- 
ers, and  the  name  thus  adopted  is  not  generic 
or  descriptive  of  the  article,  its  qualities,  in- 
gredients, or  characteristics,  but  is  arbitrary 
or  fanciful,  and  is  not  used  merely  to  denote 
grade  or  quality,  he  is  entitled  to  be  protect- 
ed in  the  use  of  that  name,  notwithstanding 
that  it  has  become  so  generally  known  that 
it  has  been  adopted  by  the  public  as  the  ordi- 
naiy  appellation  of  the  article." 

This  case  is  so  directly  in  point  that  it 
seems  unnecessary  to  look  further.  I  think 
it  perfectly  clear,  as  matter  of  law.  that  the 
complainant  is  entitled  to  the  exclusive  use 
of  the  word  "celluloid"'  as  a  trade-mark. 

The  only  question  remaining  to  be  consid- 
ered, therefore,  is  whether  the  defendant,  by 
the  use  of  the  word  '•cellonite,"  as  a  trade- 
mark, or  impression  upon  its  goods  as  a 
trade-mark,  does  or  will  infringe  the  trade- 
mark of  the  complainant.  Is  the  word  "cel- 
lonite"' sutficiently  like  the  word  "celluloid." 
when  stamped  upon  the  manufactured  arti- 
cles, to  deceive  incautious  purchasers,  and  to 
lead  them  to  suppose  that  they  are  purchas- 
ing the  products  of  the  same  manufacturers  as 
when  they  purchased  articles  marked  "•cellu- 
loid?" I  think  this  question  mttst  be  answered 
in  the  affirmative.  I  think  that,  under  the  cir- 
cumstances of  the  case,  the  word  "cellonite"  is 
sufficiently  like  the  word  "celluloid"  to  pro- 
duce the  mischief  which  is  within  the  prov- 
ince of  the  law.  I  say,  undei  the  circumstan- 
c-es  of  the  case.  By  that  I  mean  the  previ- 
ous nomenclature  applied  to  the  articles  as 
manufactured  by  different  persons.  The  com- 
plainant has  always  stamped  its  goods  with 
the  word  "celluloid."  Other  manufacturers 
have  called  the  product  as  manufactured 
by  them  by  names  quite  unlike  this,  as  "pas- 
bosene,"'  "lignoid,"  "chrolithion."  etc.;  so  that 
a  wide  difference  in  designation  and  mark- 
ing has  existed  between  the  complainant's 
goods  and  those  of  all  others.  The  adoption 
now  of  a  word  and  mark  so  nearly  like  the 
complainant's  as  "cellonite"  cannot  fail,  it 
seems  to  me,  to  mislead  ordinary  purchasers, 
and  to  deceive  the  public. 

The  defendant,  however,  sets  up  two 
grounds  of  defense  against  the  application 
for  an  injunction  outside  of  the  merits  of  the 
case:  First,  that  the  complainant  has  acqui- 
esced in  the  use  of  the  word  "celluloid"  in  the 
names  of  a  great  number  of  other  companies, 
several  of  which  are  enumerated  in  the  an- 
swer, such  as  the  "Celluloid  Brush  Com- 
pany," the  "Celluloid  Collar  &  Cuff  Com- 
pany," and  the  like;  and,  by  such  acquies- 
cence, has  lost  any  right  to  complain  of  such 
use  by  other  companies.  But  it  is  obvious 
that  such  special  names,  indicating  confine- 
ment to  a  particular  branch  of  the  trade,  are 
wholly     unlike     the     complainant's     general 


TRADEMARKS. 


103 


name  of  "Celluloid  Manufacturing  Company." 
Besides  tliis,  it  is  altogether  probable,  as  we 
gather  from  one  of  the  affidavits,  that  these 
branch  companies  are  mostly  licensees  of  the 
complainant,  and  very  properly  use  the  word 
"celluloid"  in  their  names.  AVe  think  that 
this  defense  cannot  justly  prevail. 

The  other  is  of  somewhat  the  same  charac- 
ter,— supposed  laches  and  acquiescence  on 
the  part  of  the  complainant,  in  allowing  the 
defendants  themselves,  for  three  or  four 
years  prior  to  the  suit,  to  use  the  word  "cel- 
lonite,"  stamped  on  their  articles  of  manu- 
facture, and  in  their  business  name.  How 
the  defendant  could  have  done  this  before  its 
own  existence  is  difficult  to  understand.  But, 
suppose  it  is  meant  tliat  it  was  done  b.v  the 
corporators  and  predecessors  of  the  defend- 
ant, there  is  no  proof  that  it  ever  came  to 
the  knowledge  of  the  complainant;  and  the 
fact  that  the  previous  name  used  imder  the 
former  coii^orate  organization  was  that  of  the 
"Aierchants'  Manufacturing  Company"  is  suf- 
ficient to  afford  the  complainant  prima  facie 
ground  of  excuse  for  not  having  learned  of 
the  alleged  use  of  the  word  "cellonite,"  if  it 
ever  was  used.  I  do  not  think  that  either 
of  these  defenses  can  avail  the  defendant. 
My  conclusion  is  that  the  complainant,  as 
the  case  now  stands,  is,  in  strictness,  entitled 
to  an  injunction  to  restrain  the  deiendant 
from  using  the  name  "Cellonite  Mauufactiu'- 
Ing  Company,"  or  any  other  name  substan- 
tially like  that  of  the  complainant;   and  from 


using  the  woi-d  "cellonite"  as  a  trade-mark 
or  otherwise,  upon  the  goods  which  it  may 
manufacture  or  sell,  or  any  other  word  sub- 
stantially similar  to  the  word  "celluloid,"  the 
trade-mark  of  the  complainant. 

But  my  great  reluctance  to  grant  a  pre- 
liminary injunction  for  suppressing  the  use 
of  a  l)usiness  name,  or  of  a  trade-mark,  in 
any  case  in  which  the  matter  in  issue  is  a 
subject  for  fair  discussion,  and  admits  of 
some  doubt  in  the  consideration  of  its  facts, 
induces  me  to  withhold  the  order  for  the 
present,  on  condition  that  the  defendant  will 
agree  to  be  ready  to  submit  the  cause  for 
final  hearing  at  the  next  stated  term  of  the 
court,  which  commences  on  the  fourtli  Tues- 
day of  .September.  It  is  possible  that  addi- 
tional evidence,  or  a  fuller  verification  of  the 
allegations  of  the  answer,  may  so  modify  the 
facts  of  the  case  presented  for  consideration 
as  to  lead  to  a  change  of  views  on  the  ques- 
tion of  infringement,  or  of  excuse  therefor. 
At  all  events,  it  will  be  more  satisfactory  not 
to  render  judgment  in  the  case  until  the  de- 
fendant has  been  fully  heard,  and  when  it 
would  have  a  right  of  imme<liate  appeal. 
Should  the  defendant  not  be  ready  for  a  hear- 
ing at  the  time  indicated,  the  present  motion 
may  be  renewed  without  additional  argument, 
or  the  complainant  maj*  take  such  other  course 
as  it  shall  be  advised. 

At  the  September  term  no  further  evidence 
was  offered,  and  an  order  for  injunction  was 
granted  without  opposition. 


104 


GIFTS 


CROOK  T. 


FIRST  NAT. 
BARABOO. 


BANK  OF 


(52  N.  W.  1131.  S:^  Wis.  31.) 
Supreme  Court  of  Wisconsin.      Sept.  27,  1892. 

Appeal  from  circuit  court,  Sauk  county; 
Robert  G.  Siebecker,  Judge. 

Action  by  Peter  Crook,  as  administrator  of 
the  estate  of  Lucretla  Austin,  deceased, 
against  tlie  First  National  Bank  of  Baraboo. 
From  an  order  overruling  a  demurrer  to  the 
answer,  plaintiff  appeals.     Affirmed. 

The  other  facts  fully  appear  in  the  follow- 
ing statement  by  PINNEY.  J.: 

The  appellant,  in  his  capacity  as  adminis- 
trator of  the  estate  of  Lucretia  Austin,  de- 
ceased, brought  this  suit  against  the  respond- 
ent, alleging  that  prior  to  and  at  the  time  of 
her  death  there  was  deposited  in  the  defend- 
ant bank,  of  the  moneys  of  the  said  Lucretia 
Austin,  and  to  her  credit,  the  sum  of  $4,- 
504.70,  which  sum  it  was  alleged  was  due 
and  owing  to  her,  the  said  Lucretia  Austin, 
from  the  defendant  bank,  at  the  time  of  her 
death,  but  the  defendant  still  lias  and  holds 
it.  and  on  demand  of  plaintiff  has  refused  to 
pay  the  same.  The  answer  alleges,  in  sub- 
stance, as  a  first  defense,  that  prior  to  the 
death  of  the  said  Lucretia  Austm.  and  on  the 
28th  of  December.  1SS7.  the  defendant  re- 
ceived from  her  fotir  United  States  govern- 
ment bonds,  with  directions  to  sell  them,  and 
place  the  proceeds  to  her  credit;  and  also  re- 
ceived therewith,  at  the  same  time,  for  col- 
lection, certain  interest  coupons  of  the  value 
of  $221,  the  proceeds  of  which  were  in  like 
manner  to  be  placed  to  her  credit.  That  such 
proceeds  of  the  bonds  and  coupons  were  $4.- 
501.70.  and  were,  immediately  after  the  sale 
of  said  bonds  and  collection  of  said  coupons, 
placed  to  her  credit  in  the  said  bank;  that 
they  were  receipted  for  by  the  cashier  of  said 
bank  when  it  received  them,  as  follows: 
'Tronton.  Dec.  28.  '87.  Received  of  Lucretia 
Austin  four  4i^  registered  bonds.  No.  48.981, 
No.  43,086.  No.  43.983.  No.  43.982.  to  be  sold, 
and  the  proceeds  placed  to  her  credit  in  the 
1st  Nat'l  Bank  of  Baraboo.  Also  for  collec- 
tion, $221  in  coupons,  (^has.  L.  Sproat,  Cash- 
ier." Lucretia  Austin  died  .Januarj'  3.  1888. 
and  afterwards,  on  the  Oth  of  Februaiy.  1888. 
the  said  receipt  was  presented  at  the  defend- 
ant bank  by  Charles  ilitchell,  iudoised  upon 
the  back  thereof  as  follows:  "Ironton.  Sauk 
Co.,  Wis.  Mr.  Chas.  L.  Sproat.  Baraboo, 
Wis.— Sir:  Please  let  Chas.  Mitchell,  my 
nephew,  have  the  amount  of  the  within  bill, 
and  oblige,  Lucretia  Austin.  Witness:  W. 
H.  Mitchell,  Catherine  Dyson."— dated  Jan- 
uary 2,  1888.  That  the  said  Sproat.  as  cash- 
ier of  the  bank,  upon  the  presentation  of  the 
receipt  so  indorsed,  paid  to  the  said  Mitchell 
the  amount  aforesaid,  namely,  .?4..jU4.70. 
The  defendant  alleged  that  by  the  deliveiy  of 
the  said  receipt  with  the  order  of  direction  so 
made  thereon  the  said  Lucretia  Austin,  on  the 
2d  of  January.  1888.  "intended  to  give,  and 
did  give,"  the  amoimt  for  which  the  said  re- 


ceipt was  given,  to  wit.  the  sum  of  $4,504.70, 
to  the  said  Charles  Mitchell,  or  to  the  said 
Charles  Mitchell  and  others,  to  wit,  to  said 
Charles  Mitchell  and  his  brothers  and  sisters. 
The  second  defense  was  that  the  plaintiff,  as 
such  administrator  of  the  estate  of  Lucretia 
Austin,  after  the  payment  of  the  said  sum  of 
money  to  Charles  Mitchell,  as  aforesaid,  upon 
the  said  receipt  bearing  the  indorsement  and 
order  above  mentioned,  commenced  an  action 
in  the  circuit  court  for  Satik  county  against 
said  Mitchell  and  others,  and  recovered  judg- 
ment for  the  amount  so  paid  by  the  defend- 
ant in  this  action  to  the  said  Charles  Mitchell 
on  the  Gth  of  February,  1888,  to  wit,  $4,- 
504.70.  together  with  interest  thereon;  that 
said  judgment  was  for  the  same  demand  and 
claim  made  in  this  action  against  the  defend- 
ant; and  it  is  averred  that  the  plaintiff,  by 
instituting  the  action  against  Mitchell  and 
others,  and  prosecuting  the  same  and  recov- 
ering judgment  therein  for  said  money  col- 
lected on  said  bonds  and  coupons,  and  paid  by 
the  defendant  to  the  said  Charles  Mitchell,  as 
aforesaid,  on  presentation  of  said  receipt  and 
indorsement,  elected  to  hold,  and  did  hold,  the 
said  Charles  Mitchell  and  his  codefendants 
liable  thereon,  and  thereby  waived  the  right 
to  claim  the  same  of  the  defendant.  The 
plaintiff  demtirred  to  the  answer.  The  circuit 
court  overruled  the  demurrer,  and  from  the 
order  thereon  plaintiff  appealed. 

G.  Stevens  and  Duffy  &  McCrory,  for  ap- 
pellant.    R.  D.  Evans,  for  respondent. 

PINNEY,  J.  (after  stating  the  facts).  The 
receipt  set  out  in  evidence  given  by  the  bank 
to  Lucretia  Austin  for  the  four  bonds  and 
$221  in  coupons,  the  former  to  be  sold  and 
the  latter  to  be  collected,  and  the  proceeds  to 
be  placed  to  her  credit,  was  more  than  a 
mere  receipt.  It  was  of  a  contractual  char- 
acter, defining  the  duty  of  the  bank  in  the 
premises,  and  was  the  sole  evidence  which 
Mis.  Austin  had  to  establish  her  right  to  the 
fund  produced  by  the  siile  of  the  bonds  and 
collection  of  the  coupons.  The  bank,  upon 
such  sale  and  collection,  became  her  debtor 
for  the  amount.  The  receipt  was  in  the  na- 
ture of  a  certificate  of  deposit.  Plainly,  the 
bank  would  not  hi  expected  to  or  be  botmd  to 
pay  over  the  money  without  the  suiTender  of 
its  obligation  to  Mrs.  Austin.  The  receipt 
was,  therefore,  potentially  the  fund  itself, 
without  which,  in  the  ordinary  cotuse  of  busi- 
ness, it  could  not  be  obtained;  and  equitably, 
at  least,  if  not  legally,  it  ijosses.sed  all  the 
characteristics  of  a  regular  certificate  of  de- 
posit. It  represented  the  money,  the  proceeds 
of  the  bonds  and  coupons.  The  answer  al- 
leges, in  substance,  the  delivery  of  this  re- 
ceipt with  the  indorsement  thereon  by  Mrs. 
Austin  to  her  nephew,  Charles  Mitchell,  five 
days  after  its  date,  and  one  day  before  her 
death,  and  that  she  thereby  "intended  to  give, 
and  did  give."  the  entire  fund  proditced  from 
the    bonds     and     coupons— $4,504.70 — to     the 


GIFTS  INTER  VIVOS. 


105 


said  Charles  Mitchell,  or  to  him  and  his  broth- 
-ers  and  sisters.  Construed  with  reasonable 
liberality,  the  answer  must  be  held  to  allege 
a  gift  of  this  fund  due  from  the  bank  to  Mrs. 
Austin,  under  the  circumstances  above  stated, 
to  the  party  named  in  the  order,  and  evidence 
would  doubtless  be  admissible  under  the  an- 
swer to  show  a  gift  of  the  fund  either  inter 
vivos  or  causa  mortis.  A  gift  inter  vivos 
must  be  completed  by  a  deliveiy  of  the  sub- 
ject of  the  gift.  A  donatio  causa  mortis 
must  be  completely  executed,  so  far  as  deliv- 
eiy is  concerned,  in  the  lifetime  of  the  donor, 
precisely  as  required  in  the  case  of  gifts  inter 
vivos.  A  donatio  causa  mortis  is  a  gift  abso- 
lute in  form,  made  by  the  donor  in  anticipa- 
tion of  his  speedy  death,  and  intended  to  take 
effect  and  operate  as  a  tran.sfer  of  title  only 
upon  the  happening  of  the  donor's  death. 
The  gift  must  be  absolute,  with  the  exception 
of  the  conditions  inherent  in  its  nature,  and  a 
delivery  of  the  article  donated  is  a  necessaiy 
element;  but  it  may  be  revoked  by  the  donor, 
and  is  completely  revoked  by  his  recovery 
from  the  sickness  or  escape  from  the  danger 
in  view  of  which  it  was  made.  And,  if  not 
so  revoked,  the  gift  may  be  taken  by  the  ad- 
uunistrator  of  the  donor,  if  necessary,  for  the 
payment  of  his  debts.  3  Pom.  Eq.  Jur.  § 
1146;  Basket  v.  Hassell.  107  U.  S.  COO,  610, 
2  Sup.  Ct.  415;  Henschel  v.  Maurer,  69  Wis. 
576,  34  N.  W.  926.  The  question  presented 
by  the  first  defense  is  whether  the  delivery  of 
the  receipt,  indorsed,  as  stated,  to  Charles 
Mitchell,  with  intent  to  give  him  the  proceeds 
of  bonds  and  coupons,  could  operate  as  a  gift, 
for  whether  the  gift  was  one  inter  vivos  or  was 
intended  as  a  donatio  causa  mortis  is  not  a 
material  question,  as  it  is  abundantly  shown 
by  the  authorities  that,  so  far  as  tlie  subjects 
which  may  be  disposed  of  by  gift  and  the 
question  of  delivery  are  concerned,  the  law  is 
the  same  in  either  case.  Camp's  Appeal.  36 
€onn.  92,  93;  HaiTis  v.  Clark,  3  N.  Y.  93,  113; 
Orover  v.  Grover,  24  Pick.  261,  264;  Basket 
v.  Has.sell,  107  U.  S.  614,  2  Sup.  Ct.  41.5.  The 
law  favors  free  and  comprehensive  power  of 
disposition  by  an  owner  of  his  property,  and 
the  rigor  of  the  earlier  cases  has  been  materi- 
ally relaxed,  both  as  to  the  subjects  of  such 
gifts  and  as  to  what  will  serve  as  a  delivery 
to  make  them  effectual.  This  is  well  illus- 
trated by  the  cases  above  cited,  in  which  it  is 
held  that  the  thing  given  must  be  delivered, 
or  it  must  be  placed  in  the  power  of  the  donee 
by  deliveiy  to  him  of  the  moans  of  obtaining 
possession.  "As  to  the  character  of  the  thing 
given,"  says  Shaw,  C.  J.,  in  Chase  v.  Redding, 
13  Gray,  418,  420,  "the  law  has  undergone 
some  changes.  Originally  it  was  limited, 
with  some  exactness,  to  chattels,  to  some  ob- 
ject of  value  deliverable  by  the  hand;  then 
extended  to  securities  transferable  solely  by 
deliveiy,  as  bank  notes,  lottery  tickets,  notes 
payable  to  bearer  or  to  order  and  indorsed  in 
blank;  subsequently  it  lias  been  extended  to 
bonds  and  other  choses  in  action  in  writing 
represented  by  a  certificate,  when  the  entire 


I  equitable  interest  is  assigned;  and  in  the  very 
latest  cases  on  the  subject  in  this  common- 
wealth it  has  been  held  that  a  note  not  nego- 
tiable, or,  if  negotiable,  not  indorsed,  but  de- 
livered, passes  w'ith  a  right  to  use  the  name 
of  the  administrator  of  the  promisee  to  col- 
lect for  the  donee's  own  use."  And  in  Par- 
ish V.  Stone,  14  Pick.  198,  speaking  of  the  ex- 
tension of  the  doctrine  to  include  choses  in 
action  delivered  so  as  to  operate  only  as  a 
transfer  by  equitable  assignment  or  a  declara- 
tion of  trust,  Shaw,  C.  J.,  also  says  that 
"these  cases  all  go  on  the  assumption  that  a 
bond  or  other  security  is  a  valid,  subsisting 
obligation  for  the  payment  of  a  sum  of  mon- 
ey, and  the  gift  is  in  effect  a  gift  of  the  mon- 
ey by  a  gift  and  deliveiy  of  the  instrument 
that  shows  its  existence  and  affords  the 
means  of  reducing  it  to  possession."  It  has 
since  been  repeatedly  held  "that  a  deposit  in 
a  savings  bank  may  be  the  subject  of  a  valid 
donatio  causa  mortis,  as  well  as  of  a  gift  inter 
vivos,  and  that  such  a  gift  may  be  proved  by 
the  delivery  of  the  bank  book  to  the  donee, 
or  a  third  person  for  him;  that,  jus  there  can 
be  no  manual  deliveiy  of  the  credit  which  the 
donor  has  in  the  bank,  tlie  delivery  of  the 
book  which  represents  the  deposit,  and  is  the 
only  evidence  in  the  possession  of  the  donor 
of  his  contract  with  the  bank,  together  with 
an  order  or  assignment,  operates  as  a  com- 
plete transfer  of  the  existing  fund,  and  is  all 
the  delivery  of  which  the  subject  is  capable." 
Pierce  v.  Bank,  129  Mass.  430,  and  cases 
cited;  Davis  v.  Ney,  125  Mass.  590;  Hill  v. 
Stevenson.  63  Me.  367;  Camp's  Appeal,  36 
Conn.  88.  In  Ridden  v.  Thrall,  125  N.  Y. 
572,  577,  578.  26  N.  E.  627,  it  was  held  that 
the  deposit  book  in  a  savings  bank  answei-s 
the  same  purpose  as  a  certificate  of  deposit 
in  other  banks,  and  that  any  delivery  which 
transfers  to  the  donee  either  the  legal  or 
equitable  title  is  sufficient  to  effectuate  a  gift; 
and  a  gift  of  the  moneys  due  a  depositor,  by 
deliverj'  of  the  deposit  book,  was  upheld,  not- 
withstanding a  by-law  of  the  bank,  printed 
in  the  book,  required  an  order  or  power  of 
attorney  when  some  person  other  than  the  de- 
positor attempted  to  draw  the  money;  and  the 
donee  in  that  case  had  no  such  power,  but 
the  court  held  that  he  had  the  .'^ame  right  to 
enforce  payment  that  he  would  have  had  if 
he  had  been  the  donee  of  any  nonnegotiable 
chose  in  action  or  a  certificate  of  deposit  or 
unindorsed  note,  and  could  estal)lish  his  right 
to  payment  in  such  case  by  any  proof  show- 
ing that  he  was  the  absolute  legal  owner.  It 
is  well  settled  that  in  order  to  constitute  a 
valid  assignment  of  a  debt  or  other  chose  in 
action,  in  equity,  no  particular  form  of  words 
is  necessaiy.  Any  words*  which  show  an  in- 
tention of  transferi'ing  or  appropriating  the 
chose  in  action  to  the  assignee  for  a  valuable 
consideration  are  sufficient;  nor  is  any  writ- 
ten instrument  re<iuired.  Any  order,  writing, 
or  act  which  makes  an  appropriation  of  the 
fund  amounts  to  an  equitable  assignment,  and 
an  oral  or  written  declaration  may  be  as  ef- 


106 


GIFTS. 


fectual  as  the  most  formal  instrument.  An 
order  for  or  payable  out  of  a  particular  fuud, 
not  only  as  between  the  drawer  and  payee, 
but  as  regards  the  drawee,  will  so  operate, 
though  not  accepted  by  him.  1  Amer.  & 
Eng.  Enc.  Law,  835,  and  cases  cited,  ubi  ut 
supra.  The  same  is  true  as  to  gifts  of  choses 
in  action,  if  a  deliveiy,  or  what  in  judgment 
of  law  amounts  to  such,  takes  place.  In 
Wilson  V.  Carpenter.  17  Wis.  ."ilG.  Cole.  J., 
says:  "Delivery  is  essential,  both  at  law  and 
in  equity,  to  the  validity  of  a  parol  gift  of  a 
chattel  or  chose  in  action;  and  it  is  the  same 
Avhether  it  be  a  gift  inter  vivos  or  causa  mor- 
tis. Without  actual  delivery  the  title  does 
not  pass;"  and  he  quotes  2  Kent.  Comm.  554, 
where  the  author  says:  "Deliveiy  m  this,  as 
in  every  other,  case  must  be  according  to  the 
nature  of  the  thing.  It  must  be  an  actual 
deliveiy,  so  far  as  the  subject  is  capable  of 
delivery.  It  must  be  secundum  subjectam 
materiam,  and  be  the  true  and  effectual  way 
of  obtaining  the  command  and  dominion  of 
the  subject.  If  the  thing  be  not  capable  of 
actual  delivery,  there  must  be  some  act  equiv- 
alent to  it.  The  donor  must  part  not  only 
with  the  possession,  but  with  the  dominion, 
of  the  property.  If  the  thing  given  be  a 
chose  in  action,  the  law  I'equires  an  assign- 
ment, or  some  equivalent  instrument,  and  the 
transfer  must  be  actually  executed."  Hen- 
schel  V.  Maurer.  00  Wis.  576.  84  N.  W.  920; 
Brimn  v.  Schuett,  59  Wis.  209.  272,  IS  X.  W. 
200.  In  Elam  v.  Keen,  4  Leigh,  333,  an  oral 
gift  of  a  bond  in  suit,  accompanied  by  a  de- 
liveiy of  the  attorney's  receipt  for  it,  was  held 
a  valid  gift  of  the  bond.  Carr.  J.,  saying: 
"The  bond  itself  could  not  be  delivered.  It 
was  in  court,  in  the  custody  of  the  law.  The 
receipt  was  its  representative.  *  *  *  As 
in  case  of  the  key,  the  delivery  of  the  receipt 
'was  the  true  and  effectual  way  of  obtaining 
the  use  of  the  subject.'  Speaking  from  my 
own  experience.  I  should  say  an  attorney  re- 
quires no  better  order  for  the  payment  of 
money  he  has  collected  on  a  bond  than  the 
receipt  he  has  given  for  the  bond.  When  he 
tjikes  this  in,  with  a  receipt  upon  it  for  the 
money,  he  feels  himself  safe."  In  this  case, 
superadded  to  the  receipt  given  by  the  bank 
for  the  bonds  and  coupons,  was  an  order  from 
the  party  depositing  them  for  conversion, 
■written  upon  the  receipt  itself.  Moore  v.  Dar- 
ton,  4  De  Gex  &  S.  517.  .520;  Walsh's  Appeal. 
122  Pa.  St.  177,  187-190,  15  Atl.  470.  In 
Stephenson  v.  King.  81  Ky.  425.  it  is  shown 
that  the  arbitrary  rule  requiring  an  assign- 
ment and  delivery  of  the  identical  thing  in 
order  to  make  a  gift  of  it  valid  has  been 
abandoned;  and  the  language  of  the  court  in 
Elam  V.  Keen,  suiira.  that  "there  are  many 
things  of  which  actual  manual  tradition  can- 
not be  made,  either  from  their  nature  or  situ- 
ation at  the  time.  It  is  not  the  intention  of 
the  law  to  take  from  the  owner  the  power  of 
giving  these.  It  merely  requires  that  he  shall 
do  what,  under  the  circumstances,  will,  in 
reason,  be  equivalent  to  an  actual  deliveiy," 


— was  approved;  and  it  was  held  that 
"there  is  no  reason  why  the  intention  to 
give  with  the  actual  delivery  of  the  writ- 
ten evidence  of  the  right  to  the  thing,  al- 
though in  the  possession  of  another,  under 
the  belief  of  the  donor  that  it  perfects  the 
gift,  should  not  be  held  to  constitute  a  valid 
gift  causa  mortis."  But,  as  already  noticed, 
there  was  here  the  written  order  of  the 
donor  on  the  cashier  of  the  bank,  indorsed 
on  the  receipt  itself;  and  it  is  alleged  in  the 
answer  that  by  the  delivery  to  Mitchell  of 
these  instruments  Mrs.  Austin  intended  to 
give,  and  did  give,  the  fund  in  question  to 
Mitchell.  The  terms  of  the  order,  it  is  true, 
are  ambiguous,  and  it  is  argued  that  it 
amounted  only  to  an  authority  to  Mitchell 
to  receive  the  money  as  Mrs.  Austin's  agent. 
The  averment  of  intention  to  give  an  actual 
gift  answers  this  objection  for  the  purposes 
of  this  demurrer,  for  we  think  that,  as  the 
language  of  the  order  is  ambiguous,  it  is  en- 
tirely clear  that  parol  evidence  of  what  oc- 
curred at  the  time  is  competent  to  show  that 
the  order  and  delivery  of  the  receipt  were 
intended  by  Mrs.  Austin  to  operate  as  a 
present  gift,  and  not  as  a  mere  authority  to 
receive  the  money  for  her  use.  as  that  the 
delivery  of  the  receipt  and  order  was  ac- 
companied with  words  of  present  gift,  or 
that  other  contemporaneous  facts  and  cir- 
cumstances justified  that  conclusion.  We 
therefore  hold  that  the  delivery  of  the  re- 
ceipt, with  the  order  indorsed  with  the  in- 
tention of  giving  the  chose  in  action — the 
fund  due  from  the  bank— to  Mitchell,  con- 
stituted a  valid  gift  to  him  of  the  money  duo 
from  the  bank  to  plaintiff's  intestate. 

We  think  that  it  is  a  fair  inference  from 
the  allegations  of  the  second  defense  that  the 
action  iu  which  the  plaintiff  as  administrator 
recovered  judgment  against  Charles  Mitchell 
and  others  in  the  circuit  court  for  Sauk  coun- 
ty, for  the  same  money  sued  for  by  him  in 
this  action,  was  an  action  ex  contractu  for 
money  had  and  received  by  them  to  his  use, 
and  the  question  is  whether  the  plaintiff  did 
not  thereby  affirm  that  the  money  was  prop- 
erly paid  over  by  the  defendant  bank  to 
them,  or  to  Charles  Mitchell  for  his  use,  so 
as  to  preclude  him  from  now  asserting  as  a 
basis  of  recovery  in  this  action  that  such  pay- 
ment was  wrongful.  The  rule  is  universal 
that  where  a  party  has  a  choice  between  two 
inconsistent  rights  or  remedies,  and  deliber- 
ately makes  his  choice,  such  election  becomes^ 
conclusive  upon  him,  and  precludes  him  from 
subsequently  adopting  the  other.  Mariner  v. 
Railroad  Co..  20  Wis.  89;  Warren  v.  Landrj-. 
74  Wis.  144.  42  X.  W.  247;  Curtis  v.  William- 
son, L.  R.  10  Q.  B.  57;  In  re  Davison,  13  Q, 
B.  Div.  54.  If  the  alleged  gift  to  Mitchell 
was  void  or  inoperative  for  any  reason,  the 
bank  still  remained  the  debtor  of  Mrs.  Austin, 
and  the  money  it  paid  to  Mitchell  was  its 
own  money,  and  the  plaintiff  had  no  claim 
whatever  to  it.  This  money  so  paid  could 
not  become  the  money  of  the  plaintiff  except 


GIFTS  IJ^TER  VIVOS. 


107 


upon  his  ratification  of  the  act  of  Mitchell  in 
collecting  and  of  the  bank  in  payiuj;  it  to  him ; 
so  that  the  money  he  thus  received  from  the 
banii  became  and  was  money  received  and 
held  by  him  to  and  for  the  use  of  the  plain- 
tiff, and  the  plaintiff  could  have  no  claim  to  it 
but  by  electing  to  treat  it  as  he  did  by  suing 
for  and  recovering  it  as  his  money  in  the 
hands  of  the  defendants  in  that  action.  He 
could  not  treat  them  as  his  debtors  for  the 
money  had  and  received  from  the  bank  to  his 
use,  and  recover  against  them  on  that  ground, 
and  thereafter  sue  and  recover  the  same  sum 
from  the  bank  as  being  still  indebted  to  him. 
He  could  not  sue  and  recover  in  both  ac- 
tions, at  the  same  time,  nor  in  succession. 
His  rights  and  remedies  ex  contractu  against 
Mitchell  and  others  and  against  the  bank 
were  alternative,  and  not  concurrent;  and  it 
must  follow  necessarily  that  the  recovery 
against  Mitchell  and  others,  although  not  col- 
lectible, necessarily  extinguished  his  cause  of 
action  in  indebitatus  assumpsit  (for  it  is  in 
that  form)  against  the  bank.  Numerous  au- 
thorities were  cited  by  the  respondent's  coun- 
sel sustaining  this  view  of  the  case,  among 
which  is  the  case  of  Fowler  v.  Bank.  113 
N.  Y.  4o0,  21  X.  E.  172,  which  was  a  case 
where  a  person  entitled  to  a  savings-bank  de- 
posit, which  had  been  paid  without  authority 
to  another  person,  had  a  right  of  action  there- 
for against  the  bank  as  debtor  and  one 
against  the  party  so  receiving  it,  for  money 
had  and  received;  and  it  was  held  that  by 
bringing  either  action  he  lost  the  right  to  the 
other,  and  that  a  judgment  against  the  party 
who  wrongfully  received  the  money  from  the 
bank,  although  uncollectible,  was  a  bar  to  an 
action  against  the  bank.  This  case  seems  to 
have  been  thoroughly  discussed,  and  has 
been  cited  elsewhere  with  approbation,  and 
was  aflirmed  in  Teriy  v.  Munger,  121  N.  Y. 
161,  24  N.  E.  272,  and  subsequently  the  same 
point  was  decided  in  a  well-reasoned  opinion 
in  Assurance  Co.  v.  May,  82  Ga.  G4G,  9  S.  E. 
597.  The  case  is  the  same  in  principle  as 
where  a  party  who  has  waived  the  tort  by 
conversion  of  personal  property  by  suing  in 
assumpsit  is  held  precluded  from  thereafter 
maintaining  trover  against  the  defendant's 
vendee  of  the  same  property.  Nield  v.  Bur- 
ton, 49  Mich.  .53,  12  N.  W.  90G;  Farwell  v. 
Myers,  04  Mich.  234,  31  X.  W.  128.  The  sub- 
ject of  election  between  inconsistent  remedies, 
and  the  effect  of  such  election,  are  quite  fully 
considered  in  Grossman  v.  Rubber  Co.,  127 
N.  Y.  34,  37-39,  27  N.  E.  400,  in  which  Fow- 
ler V.  Bank,  supra,  is  cited  with  approval.  It 
would  have  been  a  singular  application  of  le- 


gal principles,  indeed,  if  the  plaintiff  had 
prosecuted  both  these  actions  in  the  same 
court  at  the  same  time,  that  would  permit 
the  plaintiff  to  recover  against  Mitchell  and 
others  on  the  ground  that  they  had  had  and 
received  this  money  from  the  bank  to  his  use, 
and  so  to  obtain  judgment  against  them,  and, 
the  suit  against  the  bank  being  called  for 
trial,  would  allow  him  to  recover  the  same 
money  against  the  bank  on  the  ground  that 
it  had  not  been  paid  to  Mitchell  to  the  plain- 
tiff's use,  but  the  bank  still  was  indebted  to 
the  plaintiff  for  it.  The  remedies  pursued  by 
the  plaintiff  in  the  two  actions  are  not  con- 
current, as  in  the  case  of  several  actions 
against  joint  trespassers  and  the  like,  where 
both  actions  proceed  upon  the  same  identical 
facts  as  a  foundation  of  a  recovery,  and  in 
which  the  right  involved  in  either  case  is  en- 
tirely consistent  with  that  in  the  other.  It 
will  be  found,  upon  close  examination,  that 
in  no  case  can  remedies  be  regarded  as  con- 
sistent unless  pit'dicated  upon  consistent  alle- 
gations or  grounds  of  recovery.  Here,  as  al- 
ready stated,  the  ground  of  recovery  in  the 
suit  against  Mitchell  and  others  was  that 
they  had  received  the  money  from  the  bank 
due  to  the  plaintiff  to  his  use,  and  this  is  in- 
consistent with  the  allegation  in  this  case 
that  the  bank  still  remained  indebted  to  him 
therefor.  The  positions  are  mutually  contra- 
dictory. The  defendant  bank  may  have  ma- 
terially changed  its  position  upon  the  faith 
of  the  assertion  and  election  of  the  plaintiff 
in  the  former  action,  so  that  it  would  be  un- 
just to  allow  the  plaintiff  now  to  retract  the 
claim  that  Mitchell  and  others  had  received 
the  money  from  the  bank  to  his  use,  and  now 
insist  in  this  action,  as  a  basis  of  recovery, 
that  the  former  allegation  is  untrue,  and 
the  bank  still  remains  indelited  to  him  for 
the  money.  Both  allegations  cannot  be  true. 
AVarren  v.  Landry,  74  Wis.  144,  42  N.  W. 
247;  MoiTis  v.  Rexford,  18  N.  Y.  5.52;  Rod- 
ermund  v.  Clark,  40  N.  Y.  354;  MoUer  v. 
Tuska,  87  N.  Y.  1G(J,  109.  We  think  the  rem- 
edies pursued  by  the  plaintiff  are  inconsistent; 
-  that,  by  electing  to  pursue  and  charge  Mitch- 
ell and  others  for  money  had  and  received 
from  the  bank,  the  plaintiff  elected  to  aflBrm 
the  payment  made  by  the  bank  to  Mitchell, 
and  that  he  cannot  now  be  heard  to  say  that 
the  payment  was  without  authority,  and  that 
the  bank  is  still  indebted  to  him,  as  adminis- 
trator, for  the  money.  The  order  of  the  cir- 
cuit court,  overruling  the  plaintiff's  demurrer 
to  the  defendant's  answer,  must  therefore  be 
affirmed.  The  order  appealed  from  is  af- 
firmed. 


108 


GIFTS. 


WYLIE  T.  CHARLTON  et  al.   (two  cases). 

(62  N.  W.  220,  43  Neb.  840.) 
Supreme  Court  of  Nebraska.      Feb.  G,  1895. 

Appeal  from  district  court,  Buffalo  county; 
Holcomb,  Judge. 

Action  by  Emma  Wylie  asrainst  William 
Charlton  and  otliers.  heii-s  of  Ann  Charlton,  j 
to  have  certain  property  declared  to  be  her  ! 
property.  An  action  by  James  W.  Wylie, 
husband  of  said  Emma  Wylie,  against  the 
same  defendants,  to  enforce  the  specific  per- 
formance of  a  contract  made  by  said  Ann 
Charlton.  The  cases  were  consolidated. 
From  the  judgment  in  the  case  of  Emma 
Wylie  the  defendants  appeal,  and  in  the 
<?ase  of  James  W.  Wylie  the  plaintiff  ap- 
peals.    Affirmed. 

Lamb,  Ricketts  &  Wilson  and  Dry  den  & 
Main,  for  appellants.  Calkins  &  Pratt,  for 
appellee. 

IRVINE,  C.  These  two  cases  are  based 
on  separate  records,  but  present  the  same 
state  of  facts,  and  were  apparently  tried 
together,  under  a  stipulation  which  provides 
that  the  evidence  taken  in  one  shall  be  con- 
sidered in  the  other,  with  the  exception  of 
the  evidence  of  James  W.  Wylie.  They  are 
founded  on  the  same  contract,  and,  while 
presenting  some  points  of  difference,  are  in 
so  far  identical  that  a  single  opinion  treat- 
ing both  cases  will  economize  space,  and, 
perhaps,  best  present  the  questions  involved. 

One  case  was  begun  by  James  W.  AVylie, 
and  the  other  by  Emma  Wylie,  his  wife. 
That  by  James  Wylie  made  defendants  the 
heirs  and  administrator  of  Ann  Charlton, 
deceased.  The  defendants  in  Emma  Wylie's 
case  were  the  same,  except  that  she  herself  I 
was  a  defendant  in  James  Wylie's  case. 
Each  petition  alleged  that  in  January,  1886, 
Ann  Charlton,  a  widow,  was  the  owner  in 
fee  simple  of  the  N.  W.  %  of  section  8,  town-  i 
ship  11,  range  18  W.,  and  the  equitable  own-  ' 
er,  by  virtue  of  a  contract  of  sale  from  the 
Union  Pacific  Railway,  of  the  E.  %  of  the 
N.  E.  14  of  section  i.  It  will  be  ob- 
served that  the  80  acres  last  described  ad- 
join the  quarter  section  first  described, 
and  lie  immediately  west  thereof.  The  peti- 
tions further  alleged  that  on  January  20, 
1SS6,  James  Wylie  married  Emma,  the 
daughter  of  Ann  Charlton,  whereupon  Ann 
Charlton  agreed  with  Wylie  and  wife  that 
if  they  would  remove  to  Buffalo  county,  live 
upon,  improve,  and  cultivate  said  lauds,  Ann 
Charlton  would  give  to  her  daughter  Emma 
the  SO-acre  tract  in  fee  simple,  free  from  all 
incumbrances,  and  would  sell  to  James 
Wylie  the  quarter  section  for  the  sum  of 
S;2.000,  to  be  paid  when  James  should  have 
sufficiently  stocked  said  land,  and  that 
meanwhile  James  should  pay  to  Ann  Charl- 
ton such  rent  as  might  be  agreed  upon  in 
lieu  of  interest  on  the  .$2.(M30;  that  this 
proposition    was   accepted,   and   that   Wylie 


and  wife  moved  ui^on  said  land,  and  have 
ever  since  resided  thereon;  that  they  have 
improved  and  cultivated  the  same,  and  per- 
formed all  the  conditions  of  the  contract  on 
their  part;  that  in  October,  1889,  it  was 
agreed  between  Wylie  and  Mrs.  Charlton 
that  the  purchase  money  for  the  quarter 
section  should  be  paid,  and  the  conveyance 
made  in  the  fall  of  1S90;  that  on  June  6. 
1890,  Ann  Charlton  died,  intestate,  leaving, 
as  her  heirs,  William  Charlton,  her  son,  Ella 
Chai-lton,  Elizabeth  Stevens,  and  Emma 
Wylie,  her  daughters,  and  William  Charlton, 
second,  her  grandson;  and  that  William 
Charlton  was  her  administrator.  The  pray- 
er in  each  petition  was  for  a  specific  per- 
formance of  the  contract.  The  answers  ad- 
mitted the  relationship  of  the  parties,  the 
death  of  Ann  Charlton,  and  the  ownership 
by  her  of  the  land  described,  and  denied  all 
other  allegations  of  the  petition.  In  James 
Wylie's  case  the  court  found  for  the  de- 
fendants, and  dismissed  the  case.  In  Emma 
Wylie's  case  the  court  found  for  the  plain- 
tiff, and  decreed  specific  performance  as  to 
the  80  acres.  As  we  have  said,  the  evidence 
was  the  same  for  the  most  part  in  both 
cases.  The  difference  was  this:  that  in 
Emma  Wylie's  case  the  court  permitted 
James  Wylie,  her  husband,  to  testify  as  to 
conversations  with  the  deceased  which  con- 
stituted the  parol  contract  which  it  was 
sought  to  enforce.  In  James  Wylie's  case 
the  court  excluded  the  testimony  of  Mrs. 
Wylie  as  to  the  same  facts.  Neither  party 
attempted  to  testify  in  his  own  behalf  as 
to  such  conversations.  The  result  was  that 
in  Emma  Wylie's  case  there  was  direct  evi- 
dence from  her  husband  as  to  the  contract; 
In  James  Wylie's  case  there  was  no  direct 
evidence.  From  the  decrees  so  rendered, 
appeals  have  been  taken,— in  Emma  Wylie's 
case,  by  the  defendants;  in  James  Wylie's, 
by  the  plaintiff. 

In  the  case  of  Mrs.  Wylie  the  ground  of 
the  appeal  is  that  the  decree  is  not  sus- 
tained by  the  evidence.  It  is  not  urged 
that  the  court  erred  in  admitting  the  hus- 
band's testimony.  One  point  relied  upon 
is  that  the  contract  proved  did  not,  with 
sufficient  certainty,  describe  the  land.  It 
is  true  that  Wylie's  testimony  is  simply  to 
the  effect  that  Mrs.  Charlton  agreed  to  con- 
vey to  her  daughter  "one  of  the  eighties." 
This  would  be  uncertair  standing  alone,  but 
there  is  evidence  that,  when  the  plaintiffs 
moved  upon  the  land,  they  occupied  a  sod 
house  standing  on  the  quarter  section,  and 
that  Wylie  thereafter  erected  a  barn  across 
the  section-line  road  on  the  80-acre  tract 
claimed  by  Mrs.  Wylie;  that,  while  this 
barn  was  being  erected,  Mi-s.  Charlton  was 
present,  and  a  discussion  arose  as  to  where 
it  should  be  placed,  Mrs.  Charlton  express- 
ing an  intention  of  erecting  a  house  for  her 
daughter  on  the  SO-acre  tract,  and  thinking 
for  that  reason  the  barn  should  be  placed 
on  the  quarter  section.     To  this  the  Wylies 


GIFTS  INTER  VIVOS. 


109 


responded  that,  in  case  they  should  desire 
to  sell  either  tract,  it  would  be  better  that 
both  house  and  bam  should  be  on  the  same 
tract.  Mrs.  Charlton  assented  to  this,  and 
the  barn  was  for  that  reason  placed  on  the 
80  acres.  There  is  some  other  evidence 
tending  to  show  a  recognition  by  Mrs.  Charl- 
ton of  the  80-acre  tract  claimed  as  that 
which  was  to  be  conveyed  to  her  daughter. 
We  think  that  this  evidence  was  sufficient 
to  identify  the  tract,  and  to  sustain  the  find- 
ing of  the  trial  court  in  that  particular. 

In  addition  to  this  point,  the  defendants 
contend  that  equity  will  not  interfere  to 
complete  an  imperfect  gift.  Of  the  cases 
cited  in  support  of  that  point,  Walsh's  Ap- 
peal, 122  Pa.  St.  177,  15  Atl.  470,  is  a  fair 
illustration.  That  was  a  case  in  which  it 
was  sought  to  enforce  a  donatio  mortis 
causa.  The  gift  failed,  because  of  a  want 
of  the  appropriate  elements  to  support  such 
a  gift.  The  contract  alleged  would  present 
no  such  case.  It  presents  a  case  of  a  parol 
gift  of  land,  followed  by  possession  and 
maliing  of  improvements.  That  such  a  gift 
will  be  sustained  and  enforced  in  equity  is 
no  longer  an  open  question  in  this  state. 
Dawson  v.  McFaddin.  22  Neb.  131,  34  N.  W. 
338:  Ford  v.  Steele.  31  Neb.  521,  48  N.  W. 
271.  See,  too,  Neale  v.  Neale.  9  Wall.  1; 
Brown  v.  Sutton,  129  U.  S.  238,  9  Sup.  Ct. 
273. 

It  is  still  further  urged  that  the  proof  in 
this  case  lacks  the  requisite  degree  of  cer- 
tainty, and,  in  support  of  that  contention, 
counsel  call  attention  to  the  rule  announced 
in  many  cases,  of  which  Allison  v.  Burns, 
107  Pa.  St.  50,  is  an  extreme  example,  to 
the  effect  that,  in  order  to  sustain  a  parol 
gift  of  land,  it  must  be  established  by  cred- 
ible proof,  of  such  weight  and  directness  as 
to  make  out  the  facts  beyond  a  doubt;  that 
possession  must  have  been  taken  and  main- 
tained and  improvements  made  on  the  faith 
of  the  promise  to  convey;  and  that  compen- 
sation in  damages  would  be  inadequate. 
We  do  not  question  that  this  rule,  somewhat 
qualified,  is  a  safe  one  to  pursue  in  weigh- 
ing the  evidence.  The  courts  have,  perhaps, 
gone  so  far  in  the  way  of  declaring  excep- 
tions to  the  statute  of  frauds  that  the  ef- 
ficacy of  the  statute  has  been  endangered, 
and  care  should  be  taken  in  such  exception- 
al cases  to  avoid  the  mischief  which  the 
statute  endeavored  to  prevent.  But  we  can- 
not accept  the  rule  referred  to  as  a  rule  of 
law  governing  the  review  of  a  case.  To  accept 
it  as  such  would  require  in  a  civil  case  at 
least  as  high  a  degree  of  certainty  as  in  a 
criminal  case.  As  said  by  Norval,  J.,  in 
Stevens  v.  Carson,  30  Neb.  544,  40  N.  W. 
655:  "It  has  been  repeatedly  held  by  this 
court,  in  civil  cases,  that  the  party  holding 
the  aflSrmative  of  an  issue  is  only  required 
to  establish  it  by  a  preponderance  of  the  ev-  j 
ideuce."  To  adopt  any  rule  which,  as  a  j 
matter  of  law,  requires  a  higher  degree  of  | 
proof  in  any  civil  case,  would  conflict  with   ] 


the  rule  so  established.  The  true  rule  is 
stated  in  Nealo  v.  Neale,  9  Wall.  1,  which  is 
that  the  law  requires  no  more  than  that  the 
ca.se  as  stated  be  made  out  with  reasonable 
certainty.  The  fact  that  the  gift  lies  in  pa- 
rol, the  fact  that  a  temptation  exists  to 
make  out  a  false  case,  and,  in  such  cases  as 
this,  the  fact  that  the  person  by  whom  the 
parol  testimony  might  be  contradicted  is 
dead,  are  merely  facts  affecting  the  weight 
of  the  evidence.  They  are  proper  for  consid- 
eration in  determining  on  which  side  the 
preponderance  of  the  evidence  lies.  But 
they  do  not  require  a  different  rule  as  to 
the  degree  of  evidence  required. 

In  this  case  we  think  the  terms  of  the  con- 
tract were  shown  with  reasonable  certainty. 
There  is  no  doubt  that  the  Wylies  moved 
upon  the  land  at  the  time  alleged;  that  they 
continued  to  reside  there;  that  they  made 
lasting  and  valuable  improvements.  There 
was  some  evidence  tending  to  overcome  the 
proof  so  made:  In  the  first  place,  the  facts 
already  referred  to,  which  in  their  nature 
are  calculated  to  arouse  suspicion  in  all  such 
cases.  In  the  second  place,  there  is  evi- 
dence that  Wylie  habitually,  after  the  first 
year,  divided  the  crop,  giving  to  Mrs.  Charl- 
ton one-third  thereof.  In  the  next  place, 
some  admissions  of  Wylie  are  shown  con- 
flicting with  his  claim  of  title,  and  it  was 
shown  that  he  filed  a  claim  against  Mi-s. 
Charlton's  estate  for  the  expense  of  the  im- 
provements. BTut  the  admissions  and  acts 
of  Wylie,  while  competent  as  against  him- 
self, should  not  be  considered  in  her  case,, 
and  it  seems  that  the  district  judge  did  con- 
sider them  in  his  case,  and  not  in  hers.  The 
evidence  in  Mrs.  Wj'Iie's  case,  therefore, 
fairly  conflicts.  There  was  sufficient  to  sup- 
port the  finding  of  the  district  court  in  he;- 
favor,  and  that  finding  will  not  be  disturbed. 

The  case  of  James  Wylie  presents  a  dif- 
ferent aspect.  It  lacked  all  direct  proof  of 
the  contract  relied  upon  to  sustain  it.  The 
only  evidence  to  sustain  the  case  was  proof 
of  possession  by  the  Wylies.  and  of  improve- 
ments made  on  the  land.  There  was  the 
same  evidence  as  in  Mrs.  Wylie's  case  to- 
meet  this,  and.  in  addition  thereto,  the  evi- 
dence as  to  Wylie's  filing  a  claim  against  the 
estate  for  the  improvements,  and  as  to  his 
declarations,  was  competent,  and  entitled  to 
some  weight.  The  declarations  were  some- 
what ambiguous,  and  perhaps  entitled  to  lit- 
tle weight,  and  his  act  in  filing  the  claim 
against  the  estate  was  by  him  explained  in 
such  a  manner  that  the  trial  court  might 
have  been  justified  in  accepting  the  explan- 
ation, and  giving  little  or  no  force  to  his 
act;  but  there  being  no  evidence  in  his  case 
to  establish  the  contract,  except  that  afford- 
ed by  his  possession  and  by  the  making  of 
improvements,  and  the  evidence  of  declara- 
tions by  Mrs.  Charlton,  and  there  being  on 
the  part  of  the  defendants  some  evidence  of 
declarations  contrary  to  his  claim  of  right, 
evidence  of  his  making  a  claim  against  the 


110 


GIFTS 


estate  inconsistent  with  that  claim  of  right,  ■ 
and,  in  addition  thereto,  to  circumstances 
pi-eseuting  at  once  the  opportunity  and  the 
temptation  to  now  make  a  false  claim,  we 
think  it  was  for  the  trial  court  to  determine 
whether  or  not  a  preponderance  of  evidence 
existed  in  his  favor.  The  trial  court  found 
the  issues  against  him,  and  its  finding 
should  not  be  disturbed,  unless  the  court 
erred  in  excluding  the  testimony  of  Mrs. 
Wylie,  which  was  offered  as  direct  proof  of 
the  contract. 

Mrs.  Wylie's  testimony  was  undoubtedly 
excluded  upon  the  theory  that  it  fell  with 
the  prohibition  of  section  329  of  the  Code  of 
Civil  Procedure,  which  is  as  follows:  "No 
person  having  a  direct  legal  interest  in  the 
result  of  any  civil  action  or  proceeding,  when 
the  adverse  party  is  the  representative  of  a 
deceased  person,  shall  be  permitted  to  testify 
to  any  transaction  or  conversation  had  be- 
tween the  deceased  person  and  the  witness, 
vmless  the  evidence  of  the  deceased  person 
shall  have  been  taken  and  read  in  evidence  by 
the  adverse  party  in  regard  to  such  transac- 
tion or  conversation,  or  unless  such  represen- 
tative shall  have  introduced  a  witness  who 
shall  have  testified  in  regard  to  such  transac- 
tion or  conversation,  in  which  case  the  person 
having  such  direct  legal  interest  may  be  ex- 
amined in  regard  to  the  facts  testified  to  by 
such  deceased  person  or  such  witness,  but 
shall  not  be  permitted  to  further  testify  in  re- 
gard to  such  transaction  or  conversation." 
Many  years  ago  it  became  apparent  that  the 
common-law  rule  rendering  incompetent  as 
witnesses  all  persons  interested  in  the  result 
of  an  action  was  impolitic,  and  not  adapted  to 
the  institutions  of  modern  civilization.  The 
injustice  done  by  excluding  such  witnesses 
was  manifestly  a  greater  evil  than  that  re- 
sulting from  admitting  their  testimony,  and 
thus  affording  a  temptation  to  perjury.  The 
legislatures  then  began  to  make  inroads  up- 
on the  rule,  until  the  broad  step  was  taken, 
which  has  been  embodied  in  our  Code  of 
Civil  Procedure,  of  enacting  that  every  hu- 
man being  shall  be  a  competent  witness  in 
all  cases,  except  under  certain  contingencies, 
expressly  provided  for.  Code  Civ.  Proc.  § 
328.  In  these  progressive  steps  of  legisla- 
tion, a  great  variety  of  statutes  appeared,  at 
first  extending  the  competency  of  witnesses, 
and  then,  in  connection  with  such  broad  pro- 
visions as  are  found  in  section  328  of  our 
Code,  limiting  their  cormpetency  in  certain 
cases.  The  legislatures  have  quite  generally 
recognized  the  fact  that,  when  one  party  to 
a  transaction  had  died,  the  other  party  should 
not  be  permitted  to  testify  to  such  transac- 
tion as  again.st  the  representatives  of  the 
deceased;  but  the  methods  by  which  the 
legislatures  have  sought  to  accomplish  this 
are  so  varied,  and  the  decisions  under  such 
statutes  are  so  numerous,  that  it  is  scarcely 
practicable  to  review  the  authorities,  and 
induce  from  them  a  rule  for  guidance  in 
the  case  before  us.     Especially  is  this  true 


because  the  decisions  have  turned  so  much 
upon  the  phraseology  of  the  statutes.  A  ref- 
erence to  a  few  cases  cited  in  argument  will 
demonstrate  this  fact.  In  Iowa  it  is  held 
that  a  party  adverse  to  the  representative  of 
a  deceased  cannot  examine  a  witness  as  to  a 
conversation  with  the  deceased  when  such 
witness  is  interested  on  behalf  of  the  repre- 
sentative, and  adversely  to  the  party  calling 
him.  Neas  v.  Xeas,  61  Iowa,  641,  17  N.  W. 
30;  Ivers  v.  Ivers.  61  Iowa.  721.  17  N.  W.  149; 
Donnell  t.  Braden,  70  Iowa,  551,  30  N.  W. 
777.  But  these  cases  construe  a  statute  which 
provides  that  "no  party  to  an  action  or  pro 
ceediug,  nor  any  person  interested  in  the 
event  thereof,  *  *  *  shall  be  examined  as 
a  witness  in  regard  to  any  personal  transac- 
tion or  communication  between  such  witness 
and  a  person  at  the  commencement  of  such  ex- 
amination, deceased,  insane,  or  lunatic  against 
the  executor,  administrator,  heir  at  law.  next 
of  kin.  assignee,  legatee,  devisee,  or  survivor 
of  such  deceased  person."  etc.  The  lan- 
guage of  this  statute  is  quite  plain,  although 
it  extends  the  prohibition  beyond  the  reason 
thereof.  So  in  Ellis  v.  Alford,  64  Miss.  8,  1 
South.  155.  a  husband  and  wife  joined  in  a 
bill  to  have  the  wife's  conveyance  of  her 
separate  estate  canceled,  on  the  groimd  of 
fraud.  It  was  held  that  in  such  a  case  the 
testimony  of  the  wife  was  incompetent,  but 
that  of  her  husband  was  competent.  But 
this  was  under  a  .statute  simply  providing 
that  "no  person  shall  testify  as  a  witness  to 
establish  his  own  claim  to  any  land  for  or 
against  the  estate  of  a  deceased  person." 
The  statute  excluded  only  the  testimony  of 
one  on  his  own  behalf.  So,  in  like  manner, 
a  comparison  of  statutes  of  other  states  with 
ours  generally  discloses  such  a  difference  in 
language  that  their  decisions  are  not  appli- 
cable to  our  law.  Or,  if  applicable  at  all. 
only  to  a  limited  extent.  It  is  therefore  nec- 
essai-y  to  solve  the  question  presented  with- 
out much  reference  to  adjudications  based 
on  other  statutes. 

It  will  be  obsei-ved  that  Mrs.  Wylie  was 
interested  on  both  sides  of  the  record.  If 
the  plaintiff  prevailed,  she  would  become  en- 
titled to  an  inchoate  estate  of  dower  as  the 
plaintiff's  husbanii.  If  the  defendants  pre- 
vailed, she  would  be  entitled,  apparently,  to 
a  one-fifth  interest  in  the  land,  as  heir  of  her 
mother.  Three  questions  are  in  effect  thus 
presented:  First.  Was  her  interest  as  the 
wife  of  the  plaintiff  such  a  direct  legal  in- 
terest as  to  disqualify  her?  Second.  Washer 
interest  as  heir  such  as  to  disqualify  her 
when  called  to  testify  adversely  to  that  in- 
terest? Third.  Assuming  that  either  or  both 
of  such  interests  rendered  her  incompetent, 
did  the  fact  that  she  was  interested  on  both 
sides  remove  the  disqualification?  In  solv- 
ing these  questions,  some  allusion  to  the  com- 
mon law  may  be  useful,  if  not  necessary.  It 
must  be  remembered  that  at  common  law 
any  interest  in  the  event  rendered  a  witness 
absolutely  incompetent,  and  that  such  inter- 


GIFTS  INTER  VIYOS. 


Ill 


est  was  not  necessarily  a  direct  or  a  legal 
interest.    It  was  said  that  "the  true  test  of 
the  interest  of  a  witness  is  that  lie  will  ei- 
ther gain  or  lose  by  the  direct  legal  operation 
and  effect  of  the  judgment,  or  that  the  rec- 
ord  will    be   legal    evidence    for   or   against 
him   in  some  other  action."     1  Greenl.   Ev. 
390.    It  was  also  said  that  such  interest  must 
be  present,  certain,  and  vested;    but,  by  ex- 
amining the  cases  cited  in  the  admirable  dis- 
cussion of  the  subject  in  the  text-book  cited 
(Id.  §§  390-430),  it  will  be  seen  that  interests 
in  some  cases  quite  indirect  were  considered 
sufficient  to  exclude  the  witness.    Our  Code 
seeks,  in  section  328,  to  remove  all  disquali- 
fications, and  then,  by  subsequent  provisions, 
to  establish  certain  limited  di.squalilications; 
and  it  is  not  unreasonable  to  infer  that  the 
legislature  meant  by  section  329  to  retain  in 
force  the  common-law  disqualification  in  so 
far  as  it  fell  within  the  language  of  the  stat- 
ute.   This  is  the  constraction  placed  by  the 
supreme  coui't  of  Iowa  upon  the  statute  of 
that  state.    That  court  holds  that,  in  deter- 
mining what  interest  is  sufficient  to  exclude 
the  testimony,  the  common-law  tests  apply. 
Wormley  v.  Hamberg,  40  Iowa,  22;   Goddard 
V.  Leffingwell,  Id.  249.    Such,  too,  seems  to 
be  implied   in   this   state   from   the   case   of 
Ransom  v.  Schmela,  13  Neb.  73,  12  N.  W.  920, 
where  it  was  held  that  a  liability  for  costs 
in    the   action    was   a   direct    legal    interest, 
which  rendered  a  witness  incompetent.     This 
was  one  of  the  interests  which  i-endered  a 
witness    incompetent    at    the    common    law. 
But,  while  it  seems  clear  that  the  term  "in- 
terest" was  used  in  our  statute  in  the  com- 
mon-law sense,   it  is  equally  clear  that,  by 
restricting  the  disqualification  to  those  hav- 
ing a  direct  legal  interest  in  the  action,  the 
legislature  intended  to  admit  the  testimony 
of  some  persons  having  interests  not  direct 
or  not  legal   which  at  common   law   would 
have  excluded  them. 

In  this  state,  a  woman,  by  marriage,  be- 
comes entitled  to  an  inchoate  estate  of  dow- 
er in  all  the  land  whereof  the  husband  is 
seised  of  any  estate  of  inheritance  during 
the  coverture.  Comp.  St.  c.  23,  §  1.  This  is 
an  interest  which,  when  it  once  attaches,  re- 
mains and  continues  a  charge  or  incum- 
brance upon  the  real  estate,  unless  released 
by  the  voluntary  act  of  the  wife,  or  extin- 
guished by  operation  of  law.  A  sale  of  land 
under  execution  upon  a  judgment  against 
the  husband  alone  will  not  defeat  it.  But- 
ler V.  Fitzgerald  (decided  at  the  present 
term)  Gl  N.  W.  640.  While  the  estate  thus 
acquired  is  not  one  in  possession,  it  is  such 
a  present  vested  interest,  of  a  legal  charac- 
ter, and  creates  such  a  direct  legal  interest 
in  an  action  to  establish  title  in  her  husband, 
as  falls  within  the  inhibition  of  section  329. 
The  object  of  this  section  was  to  prevent  a 
party  testifying  against  the  representatives 
of  a  deceased  person  where  the  interest  of 
such  party  in  the  result  of  the  action  is  of 
such  a  character  as  to  hold  out  a  tempta- 


tion to  perjury  to  such  an  extent  as  to  run 
counter  to  the  policy  of  the  law.  Surely, 
the  acquisition  of  an  estate,  even  one  to 
take  effect  in  futuro,  but  of  such  a  character 
as  to  be  recognized  at  law.  and  not  capable 
of  being  defeated  by  any  act  of  the  tenant, 
presents  such  an  intei-est.  We  are  aware 
that  at  common  law  it  was  held  that  the  in- 
terest of  an  heir  apparent  did  not  disqualify 
him,  but  no  one  could  be  the  lieir  of  a  living 
person.  No  present  interest  was  recognized 
in  the  heir  apparent.  Ilis  estate  might  be 
defeated  by  the  conveyance  or  will  of  his 
ancestor.  The  law  does  recognize  an  in- 
choate estate  of  dower,  and  no  act  of  the 
husband  can  defeat  such  estate.  To  the 
first  question  proposed  we  therefore  answer 
that  Mrs.  Wylie,  as  the  wife  of  the  plaintiff, 
did  have  such  an  interest  as  to  bring  her 
testimony  within  the  prohibition  of  section 
329,  and  that  the  district  court  did  not  err  in 
excluding  her  testimony  as  to  conversations 
with  Mrs.  Charlton. 

Counsel  argue  that,  aside  from  this  inter- 
est, her  interest  as  heir  disqualifies  her  from 
testifying  on  behalf  of  her  husband  adverse- 
ly to  such  interest,  and,  in  support  of  that 
contention,  cite  the  Iowa  cases  above  refer- 
red to.    But,  as  we  have  pointed  out,  those 
cases  construed  a  statute  plain  in  its  terms, 
and,  by  its  express  terms,  going  beyond  the 
reason  which  led  to  its  enactment.     It  was 
not  for  the  court,  in  spite  of  such  direct  lan- 
j  guage,  to  confine  the  statute  so  as  merely  to 
I   meet  the  mischief  which   it  was  sought  to 
prevent.     Our  statute  does  not  contain  such 
words.     The  defendants  would  have  it  con- 
strued as  if  it  read  that  no  person  having  a 
I   direct  legal  interest  in  the  result  of  an  ac- 
tion shall  be  permitted  to  testify  when  the 
party  a,flverse  to  the  one  calling  him  is  a  rep- 
resentative of  a   deceased   person.     Having 
in  view  the  common-law  rule  as  to  compe- 
tency,  and  the  mischief  which  this  statute 
sought  to  prevent,  it  should  be  construed  as 
j   if  it  read  that  no  pei-son  having  a  direct  le- 
gal interest  in  the  result  of  an  action  shall 
be  permitted  to  testify  when  the  party  inter- 
I    >sted  adversely  to   the  witness'    interest    is 
!   the  representative  of  a  deceased  person. 
I       It  still  remains  to  be  considered  whether 
the  fact  that  Mrs.  Wylie  was  interested  on 
1  both  sides  of  tlie  record  rendered  her  compe- 
!  tent.     At  common  law,  it  was  said  that,  if 
!  the    witness   is   equally    interested    on    both 
j   sides,  he  is  competent,  but,  if  there  is  a  cer- 
tain excess  of  interest  on  one  side,  he  will  be 
i  incompetent    to     testify     on     that     side.     1 
Greenl.    Ev.    §    391.     An    inspection    of   the 
cases  upon   which   that   statement   is  based 
discloses,  however,   that  the  courts  did  not 
attempt    to    weigh    different    interests,    one 
against    the   othen*.    but   adnntted    the   testi- 
mony only  where  the  interest  was  precisely 
the  same.     Thus,  in  Ilderton  v.  Atkinson,  7 
I  Term  R.  480,  a  witness  was  held  competent 
I   because,  whichever  way  the  action  resulted, 
he  was  bound  to  pay  the  amount  involved. 


112 


GIFTS. 


aci'.ording  to  its  event,  either  to  one  party  or 
to  the  other.  To  the  same  effect  is  Birt  v. 
Kershaw,  2  East,  45S.  In  other  cases  a  wit- 
ness was  held  incompetent  because,  while 
there  was  an  equal  liability  in  one  way  on 
either  side,  the  success  of  the  party  calling 
him  would  relieve  him  from  a  distinct  and 
additional  liability.  Jones  v.  Brooke,  4 
Taunt.  464;  Larbalestier  v.  Clark,  1  Barn.  & 
Adol.  S99.  Where  interests  are  precisely 
equal  on  either  side,  it  may  be  that  the  case 
is  out  of  the  reason  of  the  common  law,  al- 
though not  out  of  the  letter  of  our  statute; 
but,  where  there  is  an  interest  adverse  to  the 
representative  of  the  deceased,  we  do  not 
think  that  the  courts,  without  any  standard 
of  comparison,  should  attempt  to  weigh  that 


interest  against  an  interest  of  a  different 
character  on  the  side  of  such  representative, 
and  so  undertake  to  say  that  the  interest  on 
behalf  of  the  representative  is  greater  than 
that  against  him,  and  that  an  exception  to 
the  statute  should  in  that  case  be  made. 
Where  the  interest  is  the  same  on  either 
side,  it  may,  perhaps,  be  said  that  there  is 
not,  within  the  meaning  of  the  statute,  any 
interest  in  the  event  of  the  action;  but, 
where  the  interests  are  different  in  charac- 
ter, the  only  safe  rule  is  to  follow  the  stat- 
ute, and  exclude  the  witness'  testimony. 

We  think  the  district  court  ruled  correctly 
on  this  point,  and  the  result  is  that  both, 
judgments  should  be  affirmed. 


GIFTS  INTER  VIVOS. 


lU 


BELLIS  V.  LYONS. 

(56  N.  W.  770,  97  Mich.  398.) 
Supreme  Court  of  Michigan.      Nov.  10,  1893. 

Error  to  circuit  court,  Macomb  county; 
Arthur  L.  Canfield,  Judge. 

Action  of  trover  by  Victoria  E.  Bellis 
against  Watson  W.  Lyons  to  recover  the  value 
of  certain  notes  and  mortgages  which  de- 
fendant, as  special  administrator  of  the  es- 
tate of  Thomas  Morgan,  deceased,  claimed 
belonged  to  such  estate,  and  refused  to  de- 
liver to  plaintiff.  There  was  a  judgment  for 
defendant,  and  plaintiff  brings  eiTor.  Af- 
firmed. 

The  otlier  facts  fully  appear  in  the  follow- 
ing statement  by  GRANT,  J.: 

The  defendant  was  the  sepcial  adminis- 
ti'ator  of  one  Thomas  ]Morgan,  deceased.  As 
such,  he  took  possession  of  22  promissory 
notes  given  to  said  Morgan  in  his  lifetime. 
Some  of  the  notes  were  secured  by  chattel 
and  real-estate  mortgages.  Plaintiff,  claim- 
ing title  to  said  notes  by  gift  and  delivery 
by  Morgan,  after  demand  and  refusal  on 
part  of  defendant  to  surrender  them,  brought 
this  action  of  trover  to  recover  their  value. 
The  court  directed  a  verdict  for  defendant, 
on  the  ground  that  plaintiff  had  failed  to 
establish  her  ownership  of  the  notes.  The 
esUite  inventoried  $8,107.72,  of  which  the 
real  estate  was  $4,.'500,  and  the  notes  in  (pies- 
tion,  $3,024.  Morgan  had  been  twice  mar- 
ried. He  had  had  two  children,  both  of 
whom  died  without  issue.  After  the  death 
of  his  wife  and  children,  he  continued  to 
live  in  his  homestead,  sometimes  alone,  and 
sometimes  emploj'ing  a  housekeeper.  Eight- 
een months  before  his  death,  he  employed 
plaintiff  as  his  housekeeper.  She  lived  witli 
:xnd  took  care  of  him,  during  the  rest  of  his 
life.  He  executed  a  will  September  7,  1889, 
by  which  he  devised  his  property  to  some 
neighbors  and  relations,  giving  specific  be- 
quests to  each.  By  the  third  clause  of  his 
will,  he  provided  as  foUows:  "Tn  case  my 
present  housekeeper,  Victoria  Bellis,  shall  re- 
main with  me,  as  such  housekeeper,  until 
my  death,  as  her  compensation  for  so  doing, 
in  addition  to  such  payment  as  I  make  her 
during  life,  I  give  and  devise  to  her  that 
certain  lot  of  land  situate  in  the  to^vnship 
of  Ray,  in  the  said  Macomb  county,  Michi- 
gan, knowTi  as  the  'Ray  Exchange,'  and  as 
well  as  the  two  picK'es  and  parcels  of  land 
adjoining  the  said  Ray  Exchange,  owuwl  by 
me,  and  the  furUier  sum  of  five  hmidred 
dollars.  But  in  case  she  shall  not  so  remain 
with  me,  as  my  housekeeper,  until  my  death, 
then  and  in  that  case  she  is  to  have  out 
of  my  estate  only  her  wages,  at  the  rate  of 
one  dollar  a  week."  After  the  specific  be- 
quests, he  bequeafhed  the  residue  of  his  es- 
tate to  all  vhe  legatees  named  in  the  will, 
except  the  plaintiff,  to  be  distributed  be- 
tween them  in  proportion  to  the  specific  leg- 
acies  given.     He  died   on    the  31st   day   of 

VAN  ZTT.E.SEL.CAS.PERS. — 8 


January-  following.  Plaintiff  claims  title  by 
gift  from  Morgan  two  or  three  days  before 
his  death.  Some  of  the  notes  were  pay- 
able to  the  order  of  Mr.  Morgan,  while  oth- 
ers were  nounegotiable.  None  of  the  notes 
were  indorsed  by  Morgan,  nor  were  any  of 
the  securities  assigned  to  plaintiff.  Neither 
was  there  any  written  evidence  of  gift  or 
transfer.  Her  counsel  insist  that  there  was 
evidence  fi-om  which  a  jurj^  woiUd  be  justi- 
fied in  inferring  a  completed  gift  and  deliv- 
ery. It  becomes,  therefore,  necessaiy  to 
give  the  evidence  upon  which  this  claim  is 
based.  Plaintiff  herself  testified  that,  when 
defendant  came  and  asked  for  the  notes,  they 
were  in  her  hand  satchel,  in  the  bureau 
drawer,  and  that  they  had  been  there  two 
or  three  days  before  Morgan's  death.  One 
Chester  Cooley  testified  that  he  had  a  con- 
versation with  Morgan  the  latter  part  of  De- 
cember, 1SS9,  about  plaintiff  and  his  prop- 
erty; that  he  said  to  JNIorgan,  in  a  laughing 
and  joking  way,  "  'The  woman  is  taking  care 
of  your  house  and  you  in  good  shape;  and 
you,  getting  old  and  feeble  as  you  are,  ought 
to  do  well  for  her.'  Says  he,  'I  have,  already.' 
Says  I,  "What  have  you  done?'  Says  he,  'I 
have  given  her  somewhere  ne-ar  $3,000.'  " 
One  Ileydenrach  testified  that  he  borrowed 
$1,000  of  :Mr.  Morgan  June  20,  1889,  for 
which  he  gave  him  a  note,  and  real-estate 
mortgage;  that  Moi-gan  asked  plaintiff  if  he 
should  let  witness  have  it,  to  which  plain- 
tiff replied,  "Yes;"  and  that  Morgan  said 
that  he  did  not  care,  for  it  was  iKr  money. 
After  this  couvei'sation,  ^lorgan  loaned  wit- 
ness the  money,  taking  the  note  and  mort- 
gage in  his  own  name.  One  Lathrop  testified 
that  he  had  a  convei*sation  with  Morgan, 
but  he  cannot  fix  the  year  nor  the  time  of 
year  it  occurred,  in  which  he  said,  "If  Mrs. 
BeUis  did  as  well  as  she  had,  he'd  give  her 
all  he  had.  He  told  about  her  doing  fii-st- 
rate.  I  have  heard  him  tell  of  giving  to 
others."  One  Millei',  a  brother  of  plaintiff, 
testified  that  ^Morgan  asked  him  to  talk  with 
his  sister  in  regard  to  gt)>iig  there  to  kwp 
house  for  him;  that  he  said  if  she  would  g) 
there,  and  take  care  of  him  as  long  as  he 
lived,  he  would  give  her  his  property.  Wit- 
ness did  not  coiunnnucato  this,  however,  to 
the  plaintiff;  that  he  had  heard  phiintiff  joke 
Morgan  in  regard  to  his  having  trouble  to 
collect  his  accomits;  and  that  ^forgan  said, 
"Well,  when  I  am  gone,  I  would  like  to  see 
what  a  time  you  will  have  in  collecting  these 
notes."  One  Freeman  testified  that  .Morgan 
spoke  to  him  several  times  about  his  will; 
that  it  was  not  satisfactory  to  him;  that  ho 
said  plaintiff  should  never  want  for  any- 
thing while  she  lived;  that  he  would  pro- 
vide for  her  so  that  she  should  have  a  go.id 
living  while  she  lived;  and  that  he  intended 
to  make  another  will.  These  conversations 
were  during  his  last  illness.  One  Hillock 
testifies  that  he  had  a  conversation  with  Mor- 
gan the  day  before  he  died,  in  which  lie 
said:    "  'I  have  made  a  will.     It  is  all  wrong. 


114 


GIFTS. 


There  is  parties  I  have  left  some  of  my  prop- 
erty to,  that  it  would  uot  go  to,  if  I  j-'ot  able 
to  make  a  will  ajjain."     And  he  spoke  about 
this  lady,  his  housekeeper.     He  said  she  had 
been  very  kind  to  him,  and  she  deserved  all 
he  had.     He  said,  'I  have  made  sojue  pi*ovi- 
sions  for  her,  but  not  such  as  I  will  do,  if  I 
recover  from  this  sickness.'  "     When  the  de- 
fendant   and    the    appraisers    went    to    the 
house  to  make  an  inventory  and  appraisal  of 
the   estate,    plaintiff   told    defendant,    before 
he  had   alighted  from  his  carriage,  that  he 
must  not  inventory  these  notes,  as  they  be- 
longed to  her;    that  Morgan  had  given  them 
to  her.     She  was  induced,  however,  to  pro- 
duce the  n-ites,  which  she  did,  from  a  hand 
satchel  kept  in  a  bureau  drawer  belonging 
to   Mr.   ^Morgan,   and   to  which  she  had  the 
key.     The  above  is  the  substance  of  the  ovi- 
dcnce     tending    to     support     the     plaintiff's 
claim.    There  are,  however,  other  undisputed 
facts    bearing    upon    it.     On    January    2Sth, 
three  days  before  he  died,  plaintiff  wrote  a 
letter,  at  Mr.  Morgan's  dictation,  to  Mr.  El- 
dredge,  which  letter  is  as  follows:     "I  Avrote 
you,  not  long  since,  asking  you  to   make  a 
change  in  my  executor  in  my  will;    In  place 
of    Mr.    2*Iawry.    to    put    in    Watson    Lyons. 
I  want  you  to  let  me  know  by  return  mail 
if    you    have    complied    with    my    request" 
Febiniarj-  3,  1890,  plaintiff  executed  a  sworn 
petition   to    the   probate   court,    praying   for 
the  probate  of  the  Avill,  in  which  she  stated 
that  the  estimated  value  of  the  personal  es- 
tate was  $3,000,  and  of  the  real  estate  $5,- 
000.     At  the  same  time,   she  presented  an- 
other petition,  praying  for  the  appointment 
of  the  defendant  as  a  special  administrator, 
in   which   she   represented   the  personal   es- 
tate to  consist  of  live  stock,  notes,  and  mort- 
gages, and  that  a  chattel   mortgage  needed 
renewing,  and,  if  not  renewed  on  or  before 
a  certiiin  date,  it  was  liable  to  be  lost  to  the 
estate,  and  that  there  was  no  one  to  take 
care   of  the   notes,    mortgages,   and   papers. 
The  notes  now  claimed  by  her  are  all  that 
ISIi-.  Morgan  had.     Of  these,  three  were  not 
at  the  time  in  his  possession,  but  for  some 
tijne  previous  to  his  death  had  been  in  the 
lands   of   attorneys    for   collection.     At  the 
time  of  executing  the  petition,  she  made  no 


claim  to  these  notes.  The  will  was  a  J 
that  time  read  to  her,  and  she  admitted  that 
she  then  said,  "The  will  was  not  as  I  had 
been  informed  it  was  to  be;  as  it  has  been 
represented  it  was  to  be." 

Crocker    &    Crocker,     for    appellant     El- 
dredge  &  Spier,  for  appellee. 

GRANT,  T.,  (after  stating  the  facts.)    Plain- 
tiff's counsel  claim  that  the  notes  were  giv- 
en to  her  by  Morgan  two  or  three  days  pre- 
vious   to   his   de:ith.     The   record,    however, 
is  barren  of  any  evidence  tending  to  show 
that  he  then  delivered  them.     The  presump- 
tion is  that  the  title  remained  in  him.     The 
testimony  of  the  witnesses  Freeman  and  Hil- 
lock shows  conclusively  that  he  had  not,  at 
that  time,  delivered  them  to  her.     She  was 
his  housekeeper,  and  was  the  proper  custo- 
dian  of  his   papers   and   property  upon  the 
honiestead   until   an   administrator   was   ap- 
pointetl.     It  was  indispensable  to  the  plain- 
tiffs owTiership   for  her  to  show,   by  clear 
and    convincing    proof,    not    only    that    Mr. 
IVloigan    had    made    statements    showing   an 
intention   to  transfer  the  title,   but  that   he 
had  performed  his  intention  by  actu;U  deliv- 
ery.    The  notes  were  in  his   house,   and  in 
his  bureau.     Under  these  circumstances,  her 
possession  created  no  presumption  in  her  fa- 
vor.    Possession  and  production  of  the  nego- 
tiable notes,  imindorsed  by  him,  would  not 
have  constituted  evidence  of  ownership,  in  a 
suit  brought  by  her  against  him  while  liv- 
ing.    Retlmond  v.    Stansbury,  24  Mich.  ^5. 
Furthermore,  her  failure  to  assert  owuei-ship 
at  the  time  she  executed  the  swora  petition 
to  the  probate  court;    the  statements  therein 
contained,  that  these  notes  belonged  to  his 
estate;    her  knowledge  that  he  had  executed 
a  wiU,  and,  when  its  provisions  were  read, 
her  statement  that  it  was  not  what  she  ex- 
pected;   and   the   fact   that   Mr.    Morgan,    a 
business  man,  made  no  transfer  by  indorse- 
ment or  other  writing;    and  the  ample  com- 
pensation for  her  services  given  by  his  will, — 
are   conclusive   evidence  against   her   claim. 
Judgment  affirmed.     The  other  justices  con- 
curred. 
See  Ridgway  v.  McCartney,  57  111.  App.  453. 


GIFTS  INTER  VIVOS. 


Ill 


BOOTH   V.   BRISTOL  COUNTY  SAV. 
BANK  et  al. 

(38  N.  E.  1120,  162  Mass.  455.) 

Supreme  .Tndicial   Court  of  Massachusetts. 
Bristol.      Nov.  30.  1S94. 

Exceptions  from  superior  court,  Bristol 
countj^;    Edgar  J.  Sherman,  Judge. 

Action  by  Joseph  Booth  against  the  Bristol 
County  Savings  Bank  to  recover  the  amount 
of  certain  deposits.  John  Booth  was  sum- 
moned as  defendant  claimant  to  said  funds. 
Judgment  for  defendant  claimant,  and  plain- 
tiff excepts.     Exceptions  overruled. 

On  trial  of  this  action,  the  savings  bank 
l)ook  standing  in  the  name  of  Joseph  Booth 
was  introduced  in  evidence,  which  showed 
various  sums  deposited  and  withdrawn,  from 
1886  to  1894,  by  the  plaintiff.  The  plaintiff 
testified  that  the  defendant  claimant,  John 
Booth,  his  father,  gave  him  all  money  so  de- 
posited as  a  present,  and  that  the  book  had 
always  been  kept  in  a  place  known  only  to 
plaintiff  and  claimant.  This  the  defendant 
claimant  denied;  said  that  he  himself  had  al- 
ways had  possession  of  the  book  from  the 
time  of  its  issuance;  that  he  had  never  given 
any  of  said  money  to  the  plaintiff;  that  it 
was  deiiosited  in  tJie  plaintiff's  name  because 
the  defendant  claimant  was  ner\-ous  and  a 
poor  writer,  and  for  the  sake  of  convenience; 
and  that  the  plaintiff  was,  in  the  matter,  act- 
ing as  the  defendant  claimant's  agent  The 
defendant  claimant  called  several  witnesses 
whose  testimony  tended  in  some  particulars 
to  corroborate  his  claim.  It  was  admitted 
that  all  tlie  money  so  deposited  was  original- 
ly the  money  of  the  defendant  claimant. 
There  was  no  evidence  that  the  defendant 
claimant  ever  gave  the  book  to  the  plaintiff, 
except  when  the  claimant  ordered  the  plain- 
tiff to  make  withdrawals  or  deposits.  A  bank 
clerk  testified  that  the  bank  never  saw,  and 
did  not  know,  the  claimant  in  the  matter. 
The  claimant  had  another  deposit  and  book 
in  the  same  bank,  commencing  subsequently 
to  the  first  deposit  on  this  book,  when  that 
deposit  had  reached  over  .?1,000. 

Fred  V.  Fuller,  for  plaintiff.  Bennett  & 
Hall,  for  defendant  John  Booth.  William  H. 
Fox,  for  defendant  Bristol  County  Sav.  Bank. 

I.ATHROP.  J.  The  first  instruction  re- 
quested   in    this   case    was   rightly    refused. 


The  exceptions  expressly  state  that  "there 
was  no  evidenco  that  the  claimant  ever  gave 
the  book  to  the  plaintiff,  except  when  the 
claimant  ordered  the  plaintiff  to  make  with- 
drawals or  deposits."  The  second  request  for 
a  ruling  was  also  rightly  refused.  The  plain- 
tiff contends  that  where  A.  deposits  money  in 
a  savings  bank  in  the  name  of  B.,  and  takes 
out  a  book  in  the  name  of  B.,  this  is  an  exe- 
cuted gift  to  B.,  and  the  money  belongs  to 
him.  For  this  position  he  cites  Sweeney  v. 
Bank.  11(>  Mass.  384.  It  was  there  held  that 
where  a  man  deposits  money  in  a  savings 
bank  in  the  name  of  his  wife,  and  has  the 
bank  book  made  in  her  name  and  delivered 
to  her,  he  cannot  maintain  an  action  against 
the  bank  for  its  refusal  to  pay  the  money  to 
him.  This  was  so  decided  on  the  ground  that 
there  was  no  contract  between  the  bank  and 
the  plaintiff  to  pay  the  money  to  him.  In 
this  case  there  was  no  evidence  that  the 
money  was  deposited  by  the  wife  as  the 
agent  of  her  husband;  and  the  case  was  dis- 
tinguished on  this  ground  from  the  case  of 
McCluskey  v.  Institution  for  Savings,  103 
Mass.  300.  where  it  was  held  that  it  was  a 
good  defense  on  the  part  of  the  bank,  to  a 
suit  by  a  wife,  that  money  deposited  in  her 
own  name  was  so  deposited  at  her  husband's 
request  and  for  his  benefit,  on  the  ground 
that  these  facts  would  defeat  the  inference  of 
a  gift  arising  from  a  deposit  in  the  wife's 
name,  and  show  that  she  was  acting  as  her 
husband's  agent.  In  the  case  at  bar,  no  ques- 
tion of  procedure  arises.  The  claimant  is 
properly  before  the  court,  having  been  sum- 
moned in  under  the  provisions  of  St.  1894,  c. 
317,  §  33  (Pub.  St.  c.  110.  §  31);  and  the  only 
question  is  whether  the  plaintiff  or  the  claim- 
ant has  the  better  title  to  the  funds.  A  de- 
posit in  a  savings  bank  in  the  name  of  an- 
other is  not  alone  sufficient  to  prove  a  gift. 
Brabrook  v.  Bank,  104  Ma.ss.  228;  Sherman 
V.  Bank.  138  Mass.  581,  and  cases  cited; 
Broderick  v.  Bank.  109  Mass.  149.  Nor  is 
the  fact  that  the  savings  bank  book  desig- 
nates the  depositor  as  trustee  for  another 
conclusive  evidence  of  the  existence  of  the 
trust.  Parkman  v.  Bank,  151  Mass.  218,  24 
N.  E.  43.  While  the  plaintiff  excepted  to  the 
ruling  given,  this  point  has  not  been  argued, 
except  as  it  is  embraced  in  the  argument  re- 
lating to  the  refusal  to  give  the  two  instruc- 
tions requested.  As  we  are  of  opinion  that 
the  judge  properly  refused  to  rule  as  request- 
ed, the  order  must  be,  exceptions  overruled. 


■ 


lit) 


GIFTS. 


Appeal  of  FASSETT  et  al. 

(31  Atl.  686,  167  Pa.  St.  448.) 

Supreme  Court  of  Pennsylvania.    April  15.  1SJC>. 

Appeal  from  court  of  commou  pleas,  Wy- 
oniin.y  county. 

Under  a  judgrau'nt  in  favor  of  John  B.  Fas- 
sett  and  M:ny  J.  Fassett,  in  an  action  by  them 
against  II.  C.  Frost,  certain  real  estate  of  H. 
C  Frost  was  sold,  and  from  the  decrrt^  distrib- 
uting the  fund  derived  therefrom  Siiid  .Jolin  B. 
Fassett  and  Maiy  J.  Fassett  appealed.  Re- 
vei«e<l. 

The  laud  formerly  belonged  to  .Tason  Frost, 
and  after  his  death  it  was  taken  by  his  sou, 
H.  C.  Frost,  in  partition  proceedings,  charged 
with  a  certain  sum.  the  interest  on  which  was 
to  be  paid  annually  to  Mary  Frost,  widow  of 
.Ta.son  Frost.  The  fund,  besides  being  claimed 
by  the  Fassetts  under  their  judgment,  was 
claimed  by  X.  H.  Davis  &  Co.  and  Sholer  & 
Clark,  under  assignment  by  the  widow  of  the 
arrearages  of  her  annual  charge,  which,  they 
elaim.  has  not  been  paid  or  satisfied.  To  de- 
feat this  claim  the  Fassetts  proved  that  the 
widow  gave  H.  C.  Frost  a  receipt  for  all  ar- 
rearages down  to  and  including  the  year  18HS. 
and  contended  that  this  was  a  dist'harge  or  re- 
linquishment thereof  pro  tanto.  The  decree  ap- 
pealed from  gave  no  effect  to  the  receipt. 

Chas.  E.  Terry  and  E.  J.  Jorden.  for  appel- 
lants. AVm.  Maxwell,  Charles  M.  Lee.  and 
James  W.  Piatt,  for  appellees. 

GREEX,  J.  The  auditor  found,  upon  abun- 
dant testimony,  "that  ]Mary  Frost  gave  to  her 
son,  Heurj'  C.  Frost,  a  written  receipt  for  all 
aiTcaragcs  of  dower  due  her  np  to  Ajiril  20, 
1888."  It  is  beyond  all  question  that  by  this 
action  the  widow  intended  to  give,  and  did 
give,  to  her  son.  absolutely  and  without  any 
••ondition,  all  the  airearages  of  dower  which 
were  due  her  to  the  date  mentioned.  A  title  by 
gift  is  just  as  good  as  a  title  by  deed,  and  can- 
not be  revoked  after  the  gift  is  completed.  In 
rhis  case  the  donor  has  never  revoked  the  gift, 
or  attempted  to  do  so;  and  it  is  not  in  the  pow- 
i>r  of  any  other  iierson  to  do  so  for  her,  nor  could 
she  do  so  herself,  after  it  was  completed.  The 
subj(K*t  of  the  gift  here  was  money  due  to  the 
donor  from  the  donee.  If  the  money  due  had 
actually  been  paid  by  the  donee  to  the  donor, 
*  and  the  receipt  given,  and  then  the  donor  had 
handed  back  the  money  to  the  donee,  no  pas- 
sible question  could  have  arisen  as  to  the  effect 
of  the  transaction.  But  the  handing  of  the 
money  back  and  forth  was  entirely  unneces- 
sary, and  therefore  the  giving  of  a  receipt  was 
Just  as  efficacious  to  oxtingiiish  the  title  of 
the  donor  to  the  money  as  if  its  bodily  trans- 
luisKion  fr(»m  the  one  to  the  other,  and  back 
Hgain,  had  actually  taken  place.     The  question 


arises  only  between  the  donor  and  donee.  No 
rights  of  creditors  of  the  donor  are  involved,  be- 
cause there  were  none.  As  to  any  subseipieiit 
assignees,  they  could  not  take  what  the  donor 
could  not  give  them,  and  they  could  only  take 
what  she  had  to  give;  that  is.  moneys  due  for 
dower  after  April  20.  1S8S.  These  considera- 
tions are  quite  sufficient  to  dispose  of  the  case. 
Some  attempt  is  made  to  affect  the  quality  of 
the  gift  by  an  effort  to  clothe  it  with  a  condition, 
but  it  is  altogether  futile.  It  is  argued  that  1m>- 
cause  no  money  was  actually  paid,  and  the 
recognizance  was  not  surrendered,  there  ^-as  no 
good  legal  gift.  As  to  the  surrender  of  the  re- 
cognizance, it  was  neither  feasible  nor  essential 
to  tlie  gift.  Further  payments  in  the  futm\' 
would  become  due  under  it,  and  it  could  not  br 
siUTondered  by  the  widow,  even  if  she  had  s.i 
desired.  As  to  the  payment  of  money  for  the 
receipt,  if  that  were  necessary,  there  could  lie 
no  such  thing  as  a  gift  of  money  due  to  tlii' 
donor.  If  it  had  to  be  purchased  and  paid  for. 
ri  would  not  1x^  a  gift  at  all. 

The  effort  to  prove  a  condition  is  equally  un- 
tenable.    The  argument  is  founded  upon   the 
testimony  of  the  widow.      She  says,  "I  signel 
his  receipt,  but  I   never  rec-eived  any  money, 
but  I  supposed  he  would  pay  me  when  he  got 
able."     Of  course,  her  supposition  on  this  sub- 
ject is  only  a  supposition,  and  not  a  condition 
of  the  gift,  in  the  least  possible  sense.     Again, 
she  testifi(M:l.  "He  said,  if  I  needed  it,  and  he 
got  able,  he  would  pay  me,  notwithstanding  1 
had  given  him  this  receipt."     As  it  has  not  yet 
been  proved  that  her  son  has  ever  been  able  to 
pay  this  money  back,  or  that  his  mother  need- 
ed it,  this  remark  of  the  son  would  be  utterly 
ineffectual  to   defeat  the  gift,    even   if   it   had 
amounted  to  a  condition  of  the  gift.     Rut   it 
never  had  any  such  quality.     It  was  nor  exact- 
I  ed  by  the  mother  as  a   term  of  tlie  gift,  nor 
j  could  it  be  pretended  to  lie  of  any  higher  dig- 
nity than  a  mere  casual  remark  of  the  son.     It 
had  nothing  to  do  with  the  gift.     The  numer- 
ous authorities  citeel  in  the  argument  foi-  the 
appellees    are    altogether    wide    of    the    mark. 
They  are  not  relevant  to  the  question  at  stake 
here.     The  subject  of  the  gift  was  moneys  due 
to  the  donor  for  arrearages  of  dower  due  to  her 
by  the  donee.     She  gave  them   to  him  in  the 
only  way  in  which  such  a  gift  could  Im-  made, 
viz.  by  a  receipt  in  full  to  a  certain  date.    That 
act  was  absolute,  un<pialitied.  comiileted  by  a 
delivery  of  the  receipt  to  the  donee,  never  <pies- 
tioned  by  the  donor,  and  comi)letely  etfii-acious 
to  convey  her  title  to  the  arrearages  due.    That 
is  all  that  is  ueoessarj-  to  make  a  comi)lete  and 
perfect  gift  of  such  a  subject-matter.     The  as- 
signments of  error  are  all  sustained.     Tlie  de- 
cree of  the  court  below  is  reversed,  at  the  cost 
of  the  appellees,  and  the  record  is  remitted,  with 
instiiictions  to  distribute  tlie  fmid  in  ai*conlance 
with  this  opinion. 


GIFTS  CAUSA  MOilTIS. 


119 


HATCHER  T.  BUr'ORD  et  al. 

(2!)  S.  W.  041,  00  Ark.  1(;0.> 

Supremo   Court   of   Arkansas.      Jan.    12.    ISO."). 

Appeal  from  circuit  court,  St.  Francis  coun- 
ty;  (irant  Green,  Jr.,  Judjje. 

Bill  bj-  M.  E.  Hatcher  ajiainst  A.  B.  Buford 
and  others  to  recover  dower  upon  renuncia- 
tion of  the  provisions  made  for  her  in  her 
husband's  will  in  lieu  of  dower,  and  to  have 
a  transfer  of  bank  stock  and  notes  made  by 
him  to  defendant  declared  fraudulent  as 
against  her  right  of  dower  therein.  From  a 
judgment  denying  dower  in  the  personalty 
so  transferred,  and  allowing  it  in  one-half 
the  realty  in  fee,  both  parties  appeal.  Af- 
firmed as  to  realty  and  notes,  but  reversed  as 
to  bank  stock. 

T.  A.  Hatcher,  a  prosperous  merchant  of 
Forrest  City,  Ark.,  died  December  10,  ISOl. 
He  had  never  had  any  children,  but  left  a 
widow,  M.  E.  Hatcher,  the  appellant.  About 
two  months  prior  to  his  death,  he  sold  an 
interest  in  his  store  to  Walter  Buford,  his 
nephew,  taking  in  payment  therefor  notes  of 
the  said  Walter  amounting  to  $2,5(XJ.  These 
notes  Hatcher  indorsed  to  his  sister  Mrs.  A. 
B.  Buford,  and  mailed  them  to  her  on  the 
9th  of  October,  18Q1.  About  one  month  be- 
fore his  death.  Hatcher  directed  his  agent  to 
buy  $4,000  of  bank  stock,  and.  about  10  days 
before,  $l,OitO  more.  This  stock  was  issued 
in  the  name  of  Mrs.  Buford,  and  was  deliv- 
ered by  Hatcher's  agent  to  her  son  Walter. 
Hatcher  made  a  will,  in  which,  among  other 
bequests,  was  a  provision  for  his  wife,  and 
Mrs.  Buford  was  de^-iared  residuary  legatee 
and  devisee.  Appellant's  bill  (omitting  non- 
essentials) sets  up  a  renunciation  of  the  will, 
and  that  the  disposition  of  the  notes  and 
bank  stock  in  the  manner  indicated  was  done 
with  intent  to  defeat  appellant's  dower,  and 
was  fraudtilent;  that  the  lands  of  which  her 
husband  died  seised  were  a  now  acquisition. 
She  praj's  to  be  endowed  of  half  the  notes 
and  bank  stock,  also  of  half  the  fee  in  the 
real  estate.  The  answer  denied  the  fraud, 
claimed  an  absolute  gift  of  the  personalty, 
and  that  dower  in  the  realty  should  be  of 
one-half  for  life.  The  decree  refused  dower 
in  the  notes  and  bank  stock,  but  granted  it 
in  one-half  the  real  estate  in  fee.  Both  par- 
ties have  appealed,  and  the  issues  presented 
by  this  record  are:  First.  Was  there  a  giff^ 
Second.  If  a  gift,  was  it  inter  vivos  or  causa 
mortis?  Third.  If  a  gift  causa  mortis,  did 
it  defeat  the  widow's  dower"?  Fourth.  Should 
dower  in  the  realty  be  according  to  the  law 
at  the  time  of  the  marriage  or  at  the  death 
of  the  husband'.'' 

N.  W.  Norton,  for  ai)pellant.  John  Gatling 
and  Rose,  Hemingway  tV:  Rose,  for  appellees. 

WOOD,  J.  (after  stating  the  facts).  1.  Was 
there  a  gift"?  The  only  controversy  on  this 
point  was  as  to  the  delivery.  Deli.ery,  of 
course,  is  essential  to  a  gift.  3  Pom.  Eq.  Jur. 
§  1150;   Ammou  v.  Martin,  50  Ark.  lUl,  2G  S. 


W.  820.  Mrs.  Buford  testified  that  the  bank 
stock  M-as  not  de'ivered  to  her  until  after  her 
brother's  death,  while  Walter,  her  son,  tes- 
tified that  he  delivered  the  bank  stock  to  his 
mother  before  Hatcher's  death.  No  ques 
tiou  is  rai.sed  as  to  the  delivery  of  the  notes. 
The  evidence  supports  the  finding  of  the 
chancellor  that  there  was  a  gift  of  the  bank 
stock  and  notes. 

2.  Was  the  gift  inter  vivos  or  causa  mortis? 
The  donatio  inter  vivos,  as  its  name  imports, 
is  a  gift  between  the  living.  It  is  perfected 
and  becomes  absolute  during  the  life  of  the 
parties.  The  donatio  cau.sa  mortis,  literally, 
"is  a  gift  in  view  of  death."  But  this  does 
not  give  us  an  adefpiate  conception  of  the 
gift  as  it  is  understood  and  treated  by  the  au- 
thorities. We  find  from  an  examination  of 
those  that  where  one,  in  anticipation  of 
death  from  a  severe  illness  then  atflicting 
him,  or  from  some  imminent  peril  to  his  life, 
to  which  he  exi)ei'ts  to  be  exposed,  makes  a 
gift  accompanied  by  the  delivery  of  the  thing 
given,  either  actual  or  symbolic,  which  is 
accepted  by  the  donee,  the  law  denominates 
such  a  gift  a  "donatio  causa  mortis."  3 
Pom.  Eq.  Jur.  §  1140  et  seq.;  3  Redf.  Wills, 
p.  322,  §  42  et  seq.;  2  Beach.  Eq.  Jur.  p.  1144, 
§  1002;  1  Woerner,  Adm'n.  §§  57,  5S;  Thornt. 
Gifts,  p.  12,  c.  1;  1  Williams,  lOx'rs,  844; 
Gourle.y  v.  Linsenbigler,  51  Pa.  St.  345;  2 
Kent,  Comm.  444;  2  Bl.  Comm.  514;  Hebb 
V.  Hebb,  5  Gill,  506;  Schouler,  Pers.  Prop. 
§  135.  Were  the  notes  and  bank  stock  in 
controversy  given  under  such  circumstances? 
Both  the  pleadings  and  the  proof  settle  con- 
clusively that  the  gifts  were  in  contempla- 
tion of  the  near  ajiproach  of  death  from  the 
illness  then  alllicting  the  donor.  Hatclier.  to 
wit,  consumption.  The  gifts  being  made  dur- 
ing the  last  illness,  and  when  all  hope  of  re- 
covery was  gone,  the  presumption  is  they 
were  causa  mortis.  Merchant  v.  Merchant. 
2  Bradf.  Sur.  432;  3  Pom.  Eq.  Jur.  S  114<i, 
supra;  Lawson  v.  Lawson,  1  P.  Wms.  441; 
Henschel  v.  Maurer,  00  Wis.  570,  34  N.  W. 
920.  The  conditions  inhering  in  a  gift  made 
under  such  circumstances  do  not  have  to  be 
expressed.  The  law  attaches  them  as  a  iiart 
of  the  essential  nature  of  a  gift  <ausa  mor- 
tis. 2  Beach,  I-lq.  Jur.  §  l(H;:i;  Williams  v. 
Guile,  117  N.  Y.  343,  22  N.  E.  I(i71;  (Jrymes 
V.  Hone,  49  N.  Y.  17;  Emery  v.  Clough,  03  N. 
H.  .■">53,  4  Atl.  79().  But  it  must  not  be  forgot- 
ten that  an  absolute  gift— one  inter  vivos— 
may  be  made  by  one  upon  his  deathbed,  and 
who  is  aware  of  the  near  approach  of  death 
from  his  then  ailment.  Thornt.  Gifts,  p.  24, 
§  21.  and  authorities  cited.  Is  there  anything 
in  the  proof  to  overcome  the  i)resumption  of 
gifts  causa  mortis?  As  to  the  notes,  the  tes- 
timony shows  that  Hatcher  was  ui)  and  at 
his  store  on  the  day  these  were  executed; 
that  they  were  delivered  on  the  same  day; 
and  that  the  donor  was  able  to  drive  out 
after  this  transaction.  It  also  shows  that  it 
was  Hatcher's  desire  to  give  to  his  noi)h^-\; 
Walter  Buford  an  i merest  in  the  store,  and 


120 


GIFTS. 


that  Walter  declined  to  take  it.  The  notes 
were  executed  for  this  interest,  and  immedi- 
ately indorsed  by  the  payee,  the  donor,  to  the 
donee,  the  mother  of  the  maker  of  the  notes. 
Tlie  ffift  to  his  nephew  of  an  interest  in  his 
mercantile  business  seems  to  have  been  the 
real  purpose  of  the  donor.  Such  a  gift,  of 
course,  would  have  been  incompatible  with 
the  limitations  which  the  law  imposes  upon 
the  use  and  enjoyment  of  the  subject-matter 
of  gifts  causa  mortis,  and  the  attribute  of 
revocability  attaching  to  such  gifts.  2 
Beach.  Eq'.  .Jur.  §  1063;  3  Redf.  Wills,  pp. 
322-.'U.3.  We  think  the  time  and  circumstan- 
ces of  the  gift  of  the  notes,  as  indicated  by 
the  proof,  supports  the  chancellor's  finding 
that  this  was  a  gift  inter  vivos.  The  same, 
however,  cannot  be  said  of  the  bank  stock. 
Hatcher  was  upon  his  deathbed,  and  unable 
to  attend  to  any  business,  when  this  was  giv- 
en. Four  thousand  was  taken  out  about  one 
month  before  his  death,  and  one  thousand 
only  about  ten  days  before.  It  was  not  deliv 
ered  until  a  few  nights  before  his  death.  Wc 
find  nothing  whatever  in  the  proof  to  tak- 
the  bank  stock  out  of  the  presumption  that 
it  was  a  gift  causa  mortis,  and  nothing  ti 
support  the  chancellor's  conclusion  as  to  this 
3.  Being  a  gift  causa  mortis,  did  it  defeat 
the  widow's  dower?  Section  2.541.  Sand.  & 
H.  Dig.,  provides:  ''A  widow  shall  be  en- 
titled, as  a  part  of  her  dower,  absolutely  an  ' 
in  her  own  right  to  one-third  part  of  the  per 
sonal  estate,  including  cash  on  hand,  bonds 
bills,  notes,  book  accounts  and  evidences  ot 
debt  whereof  the  husband  died  seised  or  po;:- 
sessed."  Was  the  don(w  seised  or  possesse.l 
of  the  bank  stock  at  the  time  of  his  death 'r 
The  terms  "seised"  or  '"possessed,"  as, thus 
used  with  reference  to  personalty,  mean  sim- 
ply ownei-ship.  which  carries  with  it  the  ac 
tual  possession,  or  a  right  to  the  imme- 
diate possession.  The  real  inquiiy,  then,  is 
as  to  when  the  title  or  property  in  the  sub- 
ject-matter of  a  donatio  causa  mortis  pass- 
es. We  are  aware  that  there  is  conflict  and 
confusion  in  the  authorities  upon  this  point 
doubtless  growing  out  of  the  modes  of  do- 
natio causa  mortis  recognized  originally  by 
the  Roman  jurisprudence,  whence  the  doc 
trine  is  derived.  Under  one  of  these,  th^^ 
subject-matter  of  the  gift  became  at  once  thi 
proi)ert>'  of  the  donee,  but  on  condition  that 
he  should  return  it  to  the  donor  in  the  event 
of  his  recovery.  Under  another,  the  gift  wa  ■ 
made  upon  condition  that  the  thing  given 
shoidd  become  the  property  of  the  donee  only 
in  the  event  of  the  donor's  death.  Under  th^' 
former,  delivery  was  essential;  under  the 
latter,  it  was  not.  Thornt.  Gifts,  p.  44;  War  ' 
V.  Turner.  2  Yes.  Sr.  431;  Abb.  Desc.  Will  ■ 
&  Adv.  lt>9.  Mr.  Roper,  in  his  work  on  Leg- 
acies, tells  us  that,  after  the  contest  upon  the 
su])ject  had  subsided,  .Justinian  gives  a  defi- 
nition of  "donatio  causa  mortis,"  which 
alone  is  the  proper  one.  1  Rop.  Leg.  1.  Mr. 
Pomeroy  quotes  this  definition,  and  translates 
it  as   follows:    "A  donatio  causa   mortis   is 


that  which  is  made  in  expectation  of  death; 
as  when  anything  is  so  given  that,  if  any  fatal 
accident  befalls  the  donor,  the  person  to 
whom  it  is  given  shall  have  it  as  his  own; 
but  if  the  donor  should  sm-vive,  or  if  he 
shoTild  repent  of  having  made  the  gift,  or 
if  the  person  to  whom  it  has  been  given 
should  die  before  the  donor,  then  the  donor 
shall  receive  back  the  thing  given."  3  Pom. 
Eq.  Jiu*.  §  1146.  Judge  Redfield,  in  his  work 
on  Wills,  says:  "The  conclusion  of  Justin- 
ian's definition  seems  to  embrace  the  essen- 
tials of  the  gift.  viz.  the  gift  is  such  that  the 
donor  prefers  himself  to  retain  dominion  over 
it  rather  than  have  the  donee  acquire  it. 
But  he  prefers  the  donee  should  have  it  rather 
than  his  heir."  3  Redf.  Wills.  3'J2.  Those 
authorities  which  hold  that  the  property  in 
the  thing  given  passes  upon  delivery  and  dur- 
ing the  life  of  the  donor  have  obviously  fol- 
lowed the  kind  of  donatio  caiisa  mortis  re- 
ferred to  supra,  existing  under  the  Roman 
law  prior  to  Justinian's  definition,  which  rec- 
ognized the  subject-matter  of  the  gift  as  be- 
coming at  once  the  property  of  the  donee,  de- 
feasible upon  a  condition  subsequent,  and  un- 
der which  deliveiy  was  essential.  This  is  a 
formidable  position,  and  supported  by  high 
authority.  Basket  v.  Hassell.  107  U.  S.  602,  2 
Sup.  Ct  41.j;  Chase  v.  Redding.  13  Gray. 
418;  Marshall  v.  Berry,  13  Allen.  43;  Thornt. 
Gifts.  §  46;  Nicholas  v.  Adams.  2  Whart  17; 
Daniel  v.  Smith.  64  Cal.  346.  80  Pac.  57.5; 
Emery  v.  Clough.  63  N.  H.  552,  4  Atl.  796; 
Schouler.  Pers.  Prop.  §  137:  Dole  v.  Lincoln. 
31  Me.  422.  Since  the  decision  of  Lord  Hard- 
wicke  in  Ward  v.  Turner.  2  Yes.  Sr.,  supra. 
It  has  been  the  settled  law  of  England  that 
delivery  is  essential  in  gifts  causa  mortis; 
and  there  has  never  been  any  controversy 
upon  that  point  in  this  counti'y.  Since  de- 
livery is  an  essential  element  to  complete  the 
transfer  of  title  or  property  in  personalty 
(Schouler,  Pers.  Prop.  §  87).  the  authorities 
holding  to  the  view  that  the  title  passes  and 
becomes  vested  in  the  subject-matter  of  a 
donatio  causa  mortis  diu-iug  the  life  of  the 
donor  are  dominated  by  the  idea  of  deliv- 
ery. But.  while  delivery  is  a  prerequisite  to 
the  transfer  of  title,  it  does  not  follow  that 
there  is  always  a  transfer  of  title  where  there 
is  a  delivery,  nor  that  the  delivery  of  the 
chattel  and  the  transfer  of  the  title  are  coeval, 
in  cases  where  the  title  is  ti'ansferred.  We 
think  the  better  doctrine  upon  the  transfer 
of  the  title  to  gifts  causa  mortis  is  that  which 
accords  with  Justinian's  definition,  and  rec- 
ognizes the  subject-matter  of  the  gift  as  be- 
coming the  property  of  the  donee  in  the 
event  of  the  donor's  death;  i.  e.  the  donor's 
death  is  a  condition  precedent  to  the  vesting 
of  the  title  to  the  thing  given  in  the  donee. 
This  seems  to  be  the  rule  adopted  by  the 
English  coiui;s  of  chancery,  and  is  supported 
also  by  eminent  American  coiu"ts  and  text 
writers.  1  Williams,  Ex'rs,  782;  3  Pom.  Eq. 
.Txu-.  §  1146;  Baker  v.  Smith  (N.  H.)  23  Atl. 
S2;  Merchant  v.  Merchant,  2  Bradf.  Siu-.  432: 


GIFTS  CAUSA  MORTIS. 


121 


Gardner  v.  Parker,  3  Madd.  184;  Edwardi; 
r.  Jones,  1  Mylne  &  C.  22G;  Staniland  v. 
Willott,  3  Macn.  &  G.  6G4  et  seq.;  ^Yells  v. 
Tucker,  3  Bin.   370. 

This  view  is  certainly  more  consonant  witli 
the  conditions  which  all  the  authorities  agree 
attach  to  gifts  of  this  kind;  viz.  that  the 
reclamation  of  the  donor,  or  his  recovery 
from  existing  illness  or  escape  from  peril 
apprehended,  or  the  death  of  the  donee  be- 
fore that  of  the  donor,  will  each,  ipso  facto, 
revoke  the  gift.  Conser  v.  Snowden,  39  Am. 
Rep.  368;  Merchant  v.  Merchant,  supra. 
This  doctrine  we  have  already  approved  in 
Ammon  v.  Martin,  59  Ark.  191,  20  S.  W.  820, 
where,  in  speaking  of  donatio  causa  mortis, 
we  said:  "The  title  to  the  thing  given  re- 
mains in  the  donor,  and  the  gift  is  subject 
to  revocation  at  any  time  prior  to  his  death." 
True,  we  also  said  in  this  case,  with  refer- 
ence to  the  delivery  of  a  note  by  the  donor, 
while  on  her  deathbed,  to  the  agent  of  the 
donee,  "that  this  was  sufficient  to  make  the 
gift  complete,  no  matter  what  was  its  char- 
acter." But  this  latter  statement  was  made 
solely  in  regard  to  the  delivery.  It  might 
be  construed,  however,  as  applying  to  the 
gift  as  a  whole,  and  not  simply  to  the  ele- 
ment of  delivery.  In  that  view  the  language 
would  be  inaccurate.  In  Ammon  v.  Martin, 
supra,  it  was  not  necessary  for  us  to  distin- 
guish between  gifts  inter  vivos  and  causa 
mortis,  the  only  question  there  being,  was 
there  a  gift?  But  it  may  be  said  that  this 
view  abolishes  all  distinction  between  gifts 
causa  mortis  and  testamentary  dispositions, 
since  the  donatio  causa  mortis  is  wholly  in- 
choate and  conditional,  not  passing  title  until 
the  donor's  death.  Many  authorities  do 
speak  of  the  donatio  causa  mortis  as  but  an- 
other form  of  testamentary  disposition,  and 
liken  it  unto  the  testamentary  disposition, 
for  the  reason  that  it  is  revocable  during  the 
donor's  life,  is  subject  to  his  debts  if  thei'e 
be  a  deficiency  of  assets,  and  does  not  be- 
come an  absolute  gift  until  the  donor's  death. 
Jones  V.  Brown,  34  N.  H.439;  Baker  v.  Smith 
(N.  H.)  23  Atl.  82;  2  Kent,  Comm.  445; 
Schouler,  Pers.  Prop.  138.  But  while,  in 
these  particulars,  it  resembles  a  testamen- 
tary disposition,  it  differs  from  it,  in  that 
the  subject-matter  of  the  gift  is  delivered  to 
the  donee  during  the  life  of  the  donor,  and  at 
his  death  does  not  pass  into  the  hands  of  the 
executor  or  administrator,  but  remains  with 
the  donee.  This  is  not  because  the  property 
or  title  has  passed  to  the  donee  during  the 
life  of  the  donor,  or  that  the  donor  is  not  af- 
tually  seised  in  law  at  the  time  of  his  death, 
but  because  it  is  one  of  the  peculiar  char- 
acteristics of  this  species  of  gift  that,  at  the 
donor's  death,  the  donee  takes,  instead  of  the 
heir,  according  to  the  intention  of  the  donor, 
as  manifested  during  his  life  by  delivery  to 
the  donee.  It  should  be  observed  in  this 
connection  that  of  the  cases  cited  supra,  hold- 
ing to  the  view  that  title  vested  in  the  donee 
during  the  life  of  the  Tonor,  Chase  v.  Red- 


ding, 13  Gidy,  418,  was  the  only  one  in  which 
the  widow  was  a  party;  but  Marshall  v. 
Berry,  13  Allen,  43,  stands  on  a  parity  with 
it  by  analogy,  and  the  supreme  court  of  Mas- 
sachusetts is  undoubtedly  committed  to  the 
doctrine  that  donations  causa  mortis  are  val- 
id against  the  rights  of  the  widow.  But  the 
dower  rights  of  the  widow  rest  on  a  different 
basis  to  that  of  a  child  or  heir.  Thayer  v. 
Thayer,  14  Vt  107,  and  authorities  there  cit- 
ed. Hence  it  may  be  questioned  as  to 
whether  anj^  case  is  an  authority  against  the 
dower  rights  of  the  widow  where  she  is  not 
a  party,  altiiough  holding  that  title  vests  in 
the  donee  during  the  life  of  the  donor.  For 
instance,  in  Emery  v.  Clough,  63  N.  H.  552, 
4  Atl.  796,  supra,  the  supreme  court  of  New 
Hampshire  maintains  as  strongly  as  in  any  of 
the  cases  that  title  passes  during  the  life 
of  the  donor  to  the  subject-matter  of  a  gift 
causa  mortis.  But  in  the  case  of  Baker  v. 
Smith  (N.  H.)  23  Atl.  82  (a  much  later  case), 
the  question  being  whether  a  married  wo- 
man could  deprive  her  husband  of  his  stat- 
utory distributive  share  of  her  personal  es- 
tate by  a  gift  causa  mortis,  the  same  court 
said:  "What  she  cannot  do  in  this  re.spect 
by  will  she  cannot  do  by  another  foi-m  of  tes- 
tamentary disposition,  which  is  of  the  nature 
of  a  legacy,  and  becomes  a  valid  gift  only 
upon  the  decease  of  the  donor."  So,  also, 
Ml'.  Schouler,  who,  in  his  work  on  Personal 
Property,  contends  that  the  better  doctrine 
is  the  one  which  treats  the  title  as  vesting 
upon  delivery  during  the  donor's  life,  yet 
maintains,  in  his  work  on  Wills,  that  "the 
same  principles  which  regulate  the  wife's 
testamentary  disposition  of  her  personal 
property  should  likewise  regulate  her  gift 
causa  mortis."  Schouler,  Wills,  §  63;  Schou- 
ler, Pers.  Prop.  §  137.  And  the  same  author, 
in  commenting  upon  Marshall  v.  Beri-y,  su- 
pra, after  saying,  "This  decision  is  to  be 
regretted,"  continues:  "The  implied  condi- 
tions of  revocation  which  accompany  such 
gifts  make  the  disposition  so  nearly  ambu- 
latory, like  that  of  a  will,  that  the  policy 
of  the  law  should  not  differ  in  the  two  cases, 
except  to  discountenance  such  gifts  as  much 
as  i^ossible."  Schouler,  Wills,  §  63.  Judge 
Redfield,  upon  this  subject,  says:  "It  seems 
questionable  whether  a  man  of  substance 
can  be  allowed  to  dispose  of  his  whole  es- 
tate, and  leave  his  widow  a  beggar,  by 
means  of  this  species  of  gift,  which  is  clear 
ly  of  a  testamentary  character,  where  the 
statute  expressly  provides  that  the  widow 
may  waive  the  provisions  of  the  will,  and 
come  in  for  her  share  of  the  personal  estate 
under  the  statute  by  way  of  distribution." 
And  he  adds:  "It  is  possible  the  Ann'ricau 
courts  have  felt  too  reluctant  to  recognize 
the  difference  in  this  respect  between  the 
widow  and  next  of  kin."  3  Redf.  Wills,  324. 
note.  Under  our  law,  a  man  may  deprive 
his  children  of  their  inheritance  by  his  will 
if  he  names  them.  So.  also,  he  may  deprive 
them   by  a  donatio  causa  mortis.     But   he 


122 


GIFTS. 


cannot  deprive  the  widow  of  lier  dower 
riirlits  by  either.  And  this  for  the  reason, 
in  botli  instances,  tliat  he  dies  "seised"  of 
the  property  so  conveyed.  1  his.  in  our  opin- 
ion, is  the  only  consistent  and  logical  con- 
clusion; for  if  the  title  passes  during  the 
donor's  life,  and  he  has  the  absolute  right 
to  dispose  of  his  personalty  as  he  pleases, 
which  he  has,  how  can  it  be  said  that  the 
donee's  rights  are  inferior  to  those  of  the  wid- 
ow, except  upon  the  doctrine  above  enunciat- 
ed"? This  conclusion  makes  it  unnecessary  for 
us  to  pass  upon  the  question  of  fraud,  though 
many  courts  of  high  authority  announce 
that  fraud  may  be  predicated  ui)on  such  a 
transaction  as  this  record  discloses.  Mauikee 
V.  Beard,  S.5  Ivy.  20,  2  S.  W.  545;  Davis  v 
Davis.  5  Mo.  183;  Stone  v.  Stone,  18  Mo. 
389;  Tucker  v.  Tucker.  29  Mo.  350;  Straat 
V.  O'Neil.  8-t  Mo.  (>8;  Thayer  v.  Thayer.  14 
Vt.  107.  However,  the  majority  of  us  are 
not  satisfied  with  their  reasoning  or  theii* 
conclusion.s.  Lines  v.  liines.  142  Pa.  St.  149, 
2  Atl.  809;  Pringle  v.  Pringle,  59  Pa.  St. 
281,  contra. 

4.  The  fourth  and  last  question,  is  the 
widow  endowed  according  to  the  law  at  the 
time  of  maiTiage  or  at  the  death  of  her  hus- 
band? is  easy  of  solution,  especially  in  view 
of  the  comparatively  recent  deliverances  of 
our  own  court.  In  Smith  v.  Howell.  53  Ark. 
279.  13  S.  W.  929.  the  court  said:  "The  in- 
choate right  of  dower  diu'ing  the  lifetime  of 
the  husband  is  not  an  estate  in  laud;  it  m 
not  even  a  vested  right,  but  a  mere  intangi- 
ble, inchoate,  contingent  expectancy.  The 
law  regards  it  as  an  incumbrance  on  the 
husband's  title.  *  *  *  She  joins  with  her 
husband,  not  to  alienate  any  estate,  but  to 


release  a  future  contingent  right."  See,  also, 
Hewett  V.  Cox.  55  Ark.  235,  15  S.  W.  102G, 
and  17  S.  W.  873.  where  same  language  is 
quoted.  In  Littell  v.  Jones,  5G  Ark.  139,  19 
S.  \V.  497,  the  court,  through  Judge  Heming- 
way, again  said:  "Persons  who  may  be  en 
titled  to  inherit  under  existing  laws  may 
suffer  detriment  by  changes  in  the  law  that 
change  the  course  of  devolution,  but  there 
is  no  such  thing,  as  a  vested  right  in  a  pro- 
spective heirship,  or  in  the  maintenance  of 
the  laws  of  descent,  and,  though  their  charge 
di-ssappoint  reasonable  expectations,  it  comes 
witliin  no  constitutional  inhibition."  See, 
also,  Gregley  v.  Jackson,  38  Ark.  492.  Noth- 
ing more  need  be  said.  It  is  not  true,  as 
contended  by  counsel,  that  the  wife  acquired 
a  vested  remainder  in  the  real  estate  of 
which  her  husband  was  seised  during  cover- 
ture. The  argument  of  counsel  for  residu- 
ary devisee,  being  founded  upon  a  false 
premise,  however  plausible  and  strong,  must 
inevitably  lead  to  an  erroneous  conclusion. 
Those  of  our  decisions  which  mention  dower 
as  a  vested  right  only  used  the  term  "vest- 
ed" in  the  sense  of  assuring  whatever  right 
the  law  gave,  and  not  in  the  sense  that  dower 
rights  could  not  be  affected  or  changed  by 
a  change  in  the  law  itself.  It  follows  that 
the  devisee.  Mrs.  Buford.  could  only  claim 
under  the  law  as  it  was  at  the  death  of 
Hatcher. 

The  decree  of  the  chancellor  is  affirmed  as 
to  the  notes  and  real  estate.  As  to  the  bank 
stock,  it  is  reversed,  and  the  cause  is  re- 
manded, with  directions  to  enter  a  decree 
conforming  to  this  opinion. 

See  Yingst  v.  Lebanon  &  A.  St.  Ky.  Co.,  IGT 
Pa.  St.  438,  31  Atl.  687. 


GIFTS  CAUSA  MORTIS. 


123 


ZELLER   V.    JORDAN    et    al.      (No.    15,775.1 

(38  Pac.  640,  105  Cal.  143.) 
Supreme  Court  of  California.      Dec.  21,   1894. 

Department  2.  Appeal  from  superior  cotirt, 
city  and  county  of  San  Francisco;  Jas.  M. 
Troutt,  Judge. 

Action  by  H.  J.  Zeller  against  one  Jordan 
and  others.  From  a  judgment  for  defend- 
ants, plaintiff  appeals.     Affirmed. 

F.  J.  Castelhun,  for  appellant.  Hepburn 
Wilkins,  E.  B.  Martinelli,  and  W.  S.  Good- 
fellow,  for  respondents. 

DE  HAVEN,  J.  Action  to  recover  from  the 
defendant,  the  German  Savings  &  Loan  So- 
ciety, the  sum  of  $19,807.74,  deposited  with 
said  defendant  by  Sophia  Stoineke.  who  after- 
wards became  the  wife  of  plaintiff,  and  is  now 
deceased.  The  defendant  Jordan  is  the  ex- 
ecutor of  the  last  will  of  the  said  Sophia, 
and  is  made  a  party  to  this  action  by  reason 
of  the  fact  that  he  claims  said  deposit  as  a 
part  of  the  estate  of  his  said  testator.  The 
superior  court  rendered  judgment  in  his  favor, 
and  the  plaintiff  appeals.  The  plaintiff  al- 
leges in  his  complaint  rhat  his  deceased  wife, 
in  the  month  of  January,  1886,  "in  consideration 
of  the  love  and  affection  she  had  and  bore  un- 
to plaintiff,  and  also  for  other  good  considera- 
tions her  thereunto  moving,  made  an  assign- 
ment in  writing"  of  her  demand  against  the 
German  Savings  &  Loan  Society,  arising  out 
of  the  deposit  before  referred  to,  and  that  he 
"has  ever  since  been,  and  still  is,  the  lawful 
owner  thereof,  and  of  all  accrued  dividends 
thereon."  The  action  was  tried  by  the  court 
without  a  jury,  and  the  court  found  that  the 
deceased  never  assigned  to  plaintiff,  by  waj 
of  gift  or  otherwise,  her  said  demand  against 
the  German  Savings  &  Loan  Society;  and  the 
only  question  necessary  to  be  considered  on 
this  appeal  is  whether  this  finding  of  the 
trial  court  is  sustained  by  the  evidence. 

1.  It  appears  from  the  evidence  that  the 
deceased  wife  of  plaintiff  was  subject  to 
epilepsy,  and  died  in  March,  1893.  The  im- 
mediate cause  of  her  death  is  not  shown. 
There  was  also  evidence  tending  to  prove 
that,  between  the  years  1883  and  1886.  she 
signed  and  delivered  to  the  plaintiff  an  un- 
dated check  drawn  by  her  in  his  favor  on  the 
German  Savings  &  Loan  Society  for  the  sum 
of  $18,807.24,  with  interest,  and  to  be  charged 
to  her  account  as  a  depositor  with  that  bank. 
The  pass  book  representing  the  deposits  so 
drawn  against  was  not  delivered  to  plaintiff, 
and  imder  the  rules  of  the  said  defendant 
bank,  which  were  printed  in  said  pass  book, 
deposits  entered  therein  could  only  be  with- 
drawn by  an  order  accompanying  the  pass 
book.  The  plaintiff  was  the  only  witness  ex- 
amined in  relation  to  the  making  of  the  check, 
and  he  testified  that,  at  the  time  it  was  signed 
and  delivered,  his  wife  was  not  confined  to 
her  bed,  and  was  well,  and  further  said: 
"The  check  was  given  to  me  in  consideration 
of  love  and  affection.     That  was  the  reason 


for  getting  it.  That  was  the  only  considera- 
tion. It  was  the  understanding  between  me 
and  my  wife,  at  the  time  this  check  was 
signed,  that  I  would  not  use  the  check  or 
present  it  until  after  her  death,  and  nothing 
was  to  be  done  with  it  until  after  my  wife 
died.  I  was  not  to  touch  anything  in  that 
book  of  that  money  until  after  my  wife's 
death."  The  check  was  not  presented  to  the 
defendant  bank  until  some  time  after  the 
death  of  plaintiff's  wife.  It  is  clear  to  us 
that,  under  this  evidence,  the  finding  of  the 
com-t  that  there  was  no  completed  gift  or 
assignment  to  plaintiff  of  the  fund  in  contro- 
versy must  be  sustained.  We  do  not  find  it 
necessary  to  pass  upon  the  question  whether 
a  bank  check  uncollected  in  the  lifetime  of  the 
drawer,  and  unaccompanied  by  a  delivery  of 
the  pass  book,  which,  under  the  depositor's 
contract,  must  be  presented  with  the  order 
for  a  withdrawal  of  the  deposit,  is  effectual 
as  a  donatio  causa  mortis.  There  was  here 
nothing  in  the  nature  of  such  a  gift.  "A  gift 
in  view  of  death  is  one  which  is  made  in 
contemplation  of  the  fear  or  peril  of  death, 
and  with  intent  that  it  shall  take  effect  only 
in  case  of  the  death  of  the  giver."  Civ.  Code, 
§  1149.  "To  constitute  a  donatio  causa  mor- 
tis, the  gift  must  be  iiiade  in  contemplation 
of  the  near  approach  of  death  by  the  donor." 
Daniel  v.  Smith,  64  Cal.  349,  30  Pac.  575.  In 
some  cases  it  is  said:  "The  rule  of  law.  in 
such  cases  of  gifts  made  in  prospect  of  death, 
demands  for  their  validity  that  the  proof  shall 
show  the  existence  of  a  bodily  disorder,  or 
of  an  illness  which  imperils  the  donoi"'s  life, 
and  which  eventually  terminates  it."  Wil- 
liams V.  Guile,  117  N.  Y.  349,  22  N.  B.  1071. 
But  perhaps  the  law  upon  this  point  is  more 
accurately  stated  in  Ridden  v.  Thrall,  125  N. 
Y.  579,  26  N.  E.  627,  as  follows:  "The  gift 
must  be  made  under  the  apprehension  of 
death  from  some  present  disease,  or  some 
other  impending  peril,  and  it  becomes  void 
by  recovery  from  the  disease  or  escape  from 
the  peril.  It  is  also  revocable  at  any  time  by 
the  donor,  and  becomes  void  by  the  death  of 
the  donee  in  the  lifetime  of  the  donor."  The 
evidence  hove  entirely  fails  to  show  that  the 
deceased  delivered  the  check  referred  to  under 
any  belief  of  or  apprehension  of  the  peril  of 
death  from  any  existing  disease,  and  for  this 
reason  its  delivery  cannot  be  sustained  as  a 
gift  in  view  of  death.  "A  gift  mortis  causa, 
made  while  the  donor  is  in  full  health,  or 
while  suffering  from  a  disease  that  in  reason- 
able expectation  will  not  produce  death  in  the 
near  futiu-e,  is  invalid.  Thus,  a  deposit  made 
in  a  bank  while  the  donor  was  in  full  health 
or  medium  health,  'payable  also  to  A.  in  case 
of  the  death  of  the  donor,  was  held  to  be  ao 
invalid  gift."     Thornt.  Gifts.  §  28. 

2.  And  the  evidence  also  fails  to  show  a  gift  ' 
inter  vivos.  "A  gift  inter  vivos,  to  be  valid, 
must  take  effect  at  once,  and  there  must  be 
nothing  to  be  done  essential  to  the  validity; 
and.  if  it  is  to  take  effect  in  the  future,  there 
is  no  gift,  but  only  a  promise  to  give.     So  a 


124 


GIFTS. 


gift  to  take  effect  at  the  death  of  the  douor 
is  void."  Thorut.  Gifts.  §  76.  In  other  words, 
to  constitute  such  a  grift,  there  miist  be  an 
immediate  transfer  of  the  title,  and  the  donor 
must  relinquish  all  present  right  to  or  con- 
ti'ol  over  the  thing  given.  The  donor  here 
retained  her  dominion  over  the  fund  against 
which  the  check  was  drawn,  and  the  check 
was  delivered  to  the  plaintiff,  under  an  agree- 


ment that  he  was  not  to  use  or  present  it 
until  after  the  death  of  the  wife,  or,  as  stated 
by  the  plaintiff  in  his  testimony,  "I  was  not 
to  touch  anything  in  that  book  of  that  money 
until  after  my  wife's  death."  Judgment  and 
order  affirmed. 


We  cnuciu'; 
ALD,  J. 


McFARLAND,  J.;  FITZGER- 


GIFTS  CAUSA  MORTIS. 


12? 


DOR  AN  V.  DOR  AN.     (No.  15,090.) 

(99  Cal.  311,  33  Pac.  929.) 

?!i'iToni("  Conrt  of  California.     Aufr.  Ifi.  1S93. 

Commissioners'    decision.      Department    1. 

Appeal  from  superior  court,  city  and  c-ounty 

of  .San   Francisco;  Walter  H.   Levy,   Judge. 

Action  by   Margaret  Doran  against  James 

Doran  to  have  a  trust  declared  in  land  and 

money.     Judgment  for  defendant.     Modified. 

James  Gartlan,  for  appellant  Robert  Y. 
Countryman,  for  respondent 

Bli^LCHER,  C.  On  the  30th  day  of  June, 
1SS7,  John  Doran  was  the  OA\'ner  of  a  cer- 
tain lot  of  land  in  the  city  of  San  Francisco, 
and  of  3~T0,  money  on  deposit  to  his  credit  in 
the  Hibernia  Savings  &  Loan  Society  of  San 
Francisco.  On  that  day  he  executed  to  tlie 
defendant,  James  Doran,  a  deed  of  tlie  lot  and 
an  assignment  in  wilting  of  the  pass  book 
shoeing  the  amount  to  his  credit  in  the  said 
bank.  John  and  James  were  brothers,  and 
the  sons  of  tlie  pLaintifP.  The  plaintiff  seeks 
by  this  action  to  have  a  ti-ust  declared  in 
her  favor  as  to  the  real  and  personal  proj)- 
erty  so  transferred.  The  complaint  alleges, 
in  substance,  that  John  was  moved  and  in- 
duced to  convey  the  said  lot  and  assign  the 
said  bank  account  to  the  defendant  solely  by 
reason  of  the  confidence  he  had  in  defendant 
and  because  of  the  promise  defendant  then 
made  to  recouvey  the  lot  upon  request  to 
his  grantor,  and  to  hold  for  his  use  the  mon- 
ey, and  the  further  promise,  in  the  event  of 
John's  death,  to  convey  the  lot  to  plaintiff, 
and  to  pay  to  her  so  much  of  the  said  money 
as  might  remain  in  his  (defendant's)  hands; 
that  John  died  on  the  5th  day  of  July,  1887, 
before  any  reconveyance  of  the  land  had 
been  made,  and  leaving  intact  in  defendant's 
hands  the  whole  sum  of  money  transferred 
to  him;  and  that  plaintiff  had  demanded  of 
defendant  that  he  convey  to  her  the  said 
land,  and  paj'  to  her  the  said  money,  but  he 
refused,  and  still  refuses,  to  do  so,  except 
that  he  hiid  paid  to  her  $100  of  the  money. 
Wherefore  judgment  is  asked  "that  he,  de- 
fendant, be  declared  a  tnistee  for  plaintiff 
of  said  hind,  and  for  a  couveyajice  thei'eof 
to  her;  that  he,  defendant  be  declaimed  a 
tnistee  for  plaintiff  in  the  siun  of  .i^(>TO,  and 
that  he  be  directed  to  pay  such  sum  to  her, 
together  with  the  interest  found  due,  and  for 
costs  of  suit."  The  answer  to  the  complaint 
was  a  general  denial.  The  case  was  tried  by 
the  court,  and  the  findings  were,  in  effect 
that  the  said  conveyance  and  assignment 
were  absolute,  and  were  not  made  by  reason 
of  any  confidence  John  liad  in  defendant, 
nor  upon  any  promise  of  defendant  to  recon- 
vey  the  lot  to  John,  or  to  hold  the  money  for 
his  use,  nor  upon  any  promise,  in  the  event 
of  John's  death,  to  convey  the  lot  or  pay 
over  any  part  of  the  money  to  the  plaintiff, 
.ludgment  Avas  accordingly  entered  that 
plaintiff  take  nothing  by  the  action,  and  that 
defendant   recover  from   her   his   costs   and 


disbursements  therein.  From  this  judgment, 
and  an  order  denying  her  motiou  for  new 
trial,  the  plaintiff  appeals. 

The  only  point  made  for  reverswJ  which 
nep<l  be  noticed  is  that  the  findings  were  not 
justified  by  tlie  evidence.  The  proceedings 
at  the  trial  are  briefly  stated  in  the  record 
as  follows:  Plaintiff  introduced  in  evidence 
the  deed  and  pass  book  in  question;  the 
deed  expre.'-sing  a  nominal  consideration,  and 
the  pass  book,  numbered  108,800,  showing  a 
balance  to  the  credit  of  the  depositor  of  $770. 
"Pivof  was  then  made  that  on  June  30,  1887, 
John  Doran  was  lying  dangerously  ill  at  St. 
Maiy's  Hospital,  San  Francisco,  and  ex- 
pressed a  desire  to  settle  his  affairs;  that 
the  sick  man  knew  that  his  mother,  Mar- 
garet Doran,  the  plaintiff,  was  his  heir  at 
law;  that  for  the  purpose  of  avoiding  the 
expense  and  delay  of  probate  proceedings, 
John  determined  to  transfer  all  his  property 
in  trust;  that  he  was  aware  of  the  risk  he 
ran  in  making  such  transfer,  but  declared 
that  he  would  make  his  brother,  James,  the 
defendant,  his  trustee,  knowing  that  his  said 
brother  would  do  what  was  right;  tluit 
thereupon  John  conveyed  to  defendant  the 
aforesaid  lot  of  land  on  Jersey  street  -ind 
assigned  to  siiid  defendant  the  said  pass  nook 
No.  108.800.  It  was  also  proven  that  John 
Doran  had  died  on  the  5th  day  of  July,  1887. 
intestate,  unmarried,  and  without  issue,  and 
that  his  father  had  predeceased  him.  The 
defendant,  James  Doran,  testified  in  sub- 
stance: "I  am  defendant  in  this  action.  John 
Doran  died  on  or  about  the  5th  day  of  July. 
1887.  He  was  my  brother.  The  plaintiff, 
Margaret  Doran,  is  my  mother,  and  mother 
of  deceased.  My  father  is  dead.  My  brotli- 
er,  John,  was  never  married.  I  was  present 
when  .John  made  the  transfer  of  the  lot  on 
Jersey  street  and  the  Hibernia  Bank  pass 
book.  What  my  brother  meant  when  he 
said  I  would  do  what  was  I'ight  was  that  I 
would  reconvey  the  property  to  him  if  he  re- 
covered from  his  then  sickness.  Nothing 
furtlier  was  said  by  John  on  the  subject 
On  tlie  moniing  of  tlie  day  of  his  death,  John 
said  to  me  he  was  feeling  awful  bad;  that  he 
thought  he  was  going  to  die;  that  I  should 
hurry  down  to  the  Hibernia  Bank,  and  get 
out  his  money,  and  bring  it  up  to  him.  I 
went  acooi-dmgly  to  the  Ixuik,  and  drew  out 
his  money.  I  Avas  scai-cely  absent  more  than 
15  minutes,  but  Avhen  I  got  back  John  was 
dead."  It  was  further  proven  that,  about  a 
week  after  the  death  of  John,  the  defendant 
went  to  the  ofhce  of  tlie  attorney  who  had 
draAATi  up  and  witnessed  the  deed  and  as- 
signment by  which  the  deceased  had  trans- 
ferred his  property;  that  the  defendiuit  asked 
said  attorney  when  the  matter  Avould  come 
up  in  com-t;  that  the  attorney  there  and 
then  told  defendant  there  AA'ould  be  no  court 
proceedings;  that  to  avoid  all  such  proceed- 
ings his  brother  had  transfeiTed  the  property 
to  him;  that  he,  defendant,  was  trustee  of 
the  property,   and    the  duty  'devolved    upon 


1-26 


GIFTS. 


him  to  cany  out  tlie  wishes  of  deceased; 
that  defendant  left  the  office  without  making 
any  reply." 

1.  Upon  this  record  of  the  evidence  we  do 
not  tliinlc  tlie  findings  in  relation  to  the  real 
property  can  be  disturbed.  An  express  tnist 
in  real  property  can  only  be  created  or  de- 
clared by  a  written  instniment  subscribed 
by  the  trustor  or  trustee.  Civil  Code,  §  852. 
'i'here  was  therefore  no  express  trust  in  fa- 
vor of  the  grantor  or  the  plaintiff,  and  no 
facts  are  stated  from  which  a  trust  by  oper- 
ation of  law  must  necessarily  arise  In  her 
favor.  So  far  as  appears,  the  conveyance 
was  made  by  the  grantor  of  his  own  motion, 
:ind  without  any  solicitation,  undue  influ- 
ence, or  fraud  on  the  part  of  tlie  grantee; 
nnd  it  may  have  been  intended  to  be  abso- 
lute in  case  of  the  gi-antor's  death,  and  to 
vfst  the  title  La  fee  simple  in  the  grantee; 
and  that  it  was  so  intended  must,  in  view  of 
the  findings,  be  presumed. 

2.  As  to  the  bank  accovmt  the  law  is  dif- 
ferent. An  express  or  implied  trust  in  re- 
lation to  personal  property  may  be  declared 
and  proved  by  parol,  (Hellman  v.  McWil- 
hams,  70  Cal.  449,  11  Pac.  K-ep.  659;  Perry, 
Trusts,  §  86:)  and  here  the  undisputed  evi- 
dence on  the  part  of  the  plaintiff  shows  that 
the  pass  book  was  assigned  to  the  defendant 
in  trust  for  the  assignor.  The  respondent, 
however,  contends  that  the  assignment  and 
delivery  to  him  of  the  pass  book  constituted 
a  complete  gift  of  the  money  causa  mortis. 
Conceding  this  to  be  so,  stiU  a  gift  causa 
mortis  may  be  revoked  by  the  donor  at  any 


time  during  his  Ufe,  and  without  the  consent 
of  the  donee.  Civil  Code,  §  1151;  Daniel  v. 
Smith,  64  Cal.  349,  30  Pac.  Rep.  575;  Mer- 
chant V.  Merchant,  2  Bradf.  Sur.  432;  Parker 
V.  Mareton,  27  Me.  196.  Here  the  respond- 
ent's own  testimony  very  clearly  shows  that 
the  gift,  if  made,  was  revoked  by  the  donor 
before  he  died.  He  testified  that,  on  'the 
moniing  of  the  day  of  his  death,  John  told 
him  to  "hurry  dowTi  to  the  Hibemia  Bank, 
and  get  out  his  money,  and  bring  it  up  to 
him.  I  went  accordingly  to  the  bank,  and 
drew  out  his  money;  *  *  *  but  when  I  got 
back  John  was  dead."  This  plainly  indicates 
that  John  still  claimed  the  money  as  his  own, 
and  intended  to  again  take  it  into  his  pos- 
session. Under  these  circmnstances  it  must 
be  held  that  the  respondent  held  the  money 
in  ti-ust  and  as  a  part  of  the  estate  of  John, 
and  that  the  plaintiff,  as  the  only  heir  of 
John,  had  a  right  to  have  the  trust  enforced, 
and  the  money  paid  over  to  her. 

We  advise  that  the  judgment  and  order, 
so  far  as  they  relate  to  the  real  property,  be 
affirmed,  and  that,  so  far  as  they  relate  to 
the  money,  be  reversed,  and  the  cause  re- 
manded for  a  new  trial. 

We  concur:    SEARLS,  C;  TEMPLE,  O. 

PER  CURIAM.  For  the  reasons  given  in 
the  foregoing  opinion  the  judgment  and  or- 
der, so  far  as  they  relate  to  the  real  property, 
are  affirmed,  and,  so  far  as  they  relate  to  the 
money,  are  reversed,  and  the  cause  remanded 
for  a  new  trial. 


WEST   PUBLISHING  CO.,  J'KINTKBS  AND  STEREOTVPEBS,  ST.  PAUL,  MINN. 


LAW  1.1BUAK\ 
UNIVERSITY  OF  CAUFORNU 


Monufocturadby 


GAYLORO  BROS.  Inc. 
>       SyracuM,  N.Y. 
I      Stockton.  CotM. 


ARYFACIl 


D    000  950  335    o 

1 


